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Tarif Rashidbhai Qureshi vs Asmabanu D/O Alimohmmad Idarbhai … on 19 March, 2020

C/FA/2012/2019 CAV JUDGMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/FIRST APPEAL NO. 2012 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In R/FIRST APPEAL NO. 2012 of 2019

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE J.B.PARDIWALA Sd/-

and
HONOURABLE MR.JUSTICE VIRESHKUMAR B. MAYANI Sd/-

1 Whether Reporters of Local Papers may be allowed to Yes
see the judgment ?

2 To be referred to the Reporter or not ? Yes

3 Whether their Lordships wish to see the fair copy of the No
judgment ?

4 Whether this case involves a substantial question of law No

as to the interpretation of the Constitution of India or any
order made thereunder ?

Circulate this judgment in the subordinate judiciary.

TARIF RASHIDBHAI QURESHI
Versus
ASMABANU D/O ALIMOHMMAD IDARBHAI QURESHI AND W/O TARIF
RASHIDBHAI QURESHI

Appearance:

MR NISHANT LALAKIYA(5511) for the Appellant(s) No. 1
MR. JAVED S QURESHI(6999) for the Appellant(s) No. 1
MR SP MAJMUDAR(3456) for the Defendant(s) No. 1
SHASHVATA U SHUKLA(8069) for the Defendant(s) No. 1

CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
and
HONOURABLE MR.JUSTICE VIRESHKUMAR B. MAYANI

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Date : 19/03/2020

CAV JUDGMENT

(PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA)

1. This appeal under Section 19 of the Family Courts Act,
1984 (for short “the Act, 1984”) is at the instance of the
original defendant (husband) and is directed against the
judgment and decree passed by the Principal Judge, Family
Court, Ahmedabad dated 10th January, 2019 in the Family Suit
No.257 of 2017 instituted by the respondent herein original
plaintiff (wife) for a decree of divorce under the provisions of
the Dissolution of Muslim Marriages Act, 1939 (for short “the
Act, 1939”).

2. The facts, giving rise to this appeal, may be summarized
as under;

2.1 For the sake of convenience, the appellant herein shall be
referred to as the original defendant and the respondent
herein shall be referred to as the original plaintiff.

2.2 The plaintiff got married with the defendant on 13th June,
2009 in accordance with the Muslim rites and customs. In the
wedlock, the plaintiff conceived, but unfortunately, as alleged
on account of physical cruelty at the end of the defendant and
his family members, the plaintiff gave birth to a still born child.

2.3 It appears from the materials on record that the
defendant started harassing the plaintiff soon after the
marriage. It appears that an FIR was also lodged by the
plaintiff for the offence punishable under Section 498A of the

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Indian Penal Code. As the plaintiff was unable to continue with
the marriage on account of incessant harassment, she left her
matrimonial home and went back to her parental home. The
plaintiff also preferred an application being the Criminal Misc.
Application No.870 of 2011 in the Family Court at Ahmedabad
under Section 125 of the Criminal Procedure Code seeking
maintenance. The Family Court passed an order awarding
Rs.2000/- per month towards the maintenance. However, it
appears that the defendant failed to comply with the order
passed by the Family Court for maintenance. Later, an
application was filed being the Criminal Misc. Application No.56
of 2011 in the Court of the Metropolitan Magistrate,
Ahmedabad under the provisions of the Protection of Women
from Domestic Violence Act, 2005. In those proceedings also,
the Metropolitan Magistrate, Ahmedabad passed an order of
maintenance of Rs.2000/- per month. However, the defendant
ignored the same. Later, a private complaint was lodged by the
plaintiff in the Court of the Metropolitan Magistrate,
Ahmedabad for the offence punishable under Sections 403,
406 and 420 of the Indian Penal Code.

2.4 Ultimately, the plaintiff instituted the Family Suit No.257
of 2017 for the dissolution of marriage on the ground of cruelty
and for appropriate permanent alimony.

2.5 It appears that the plaintiff preferred an application
Exh.5 in the Family Suit No.257 of 2017 for interim alimony.
The Family Court passed an order directing the defendant to
pay Rs.10,000/- to the plaintiff towards the interim alimony.
This order of interim alimony passed by the Family Court was
challenged by the defendant by filing the Special Civil

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Application No.14762 of 2017. The Special Civil Application
No.14762 of 2017 ultimately came to be allowed by the
learned Single Judge of this Court vide order dated 25th July,
2018. The order of interim alimony passed by the Family Court
in favour of the plaintiff was quashed and set aside. The
learned Single Judge of this Court observed as under;

“4. While the suit was filed under the Dissolution of
Muslim Marriage Act, 1939 and interim prayer for alimony
was made in the said suit, it could be noticed from the
provisions of the Act of 1939 that the said law does not
contain any provision regarding interim alimony. The
learned Principal Judge of the Family Court had allowed
application Exh.5, proceeded to allow the application
Exh.5 for interim alimony. In paragraph 5, the learned
Principal Judge, Family Court, noted that it was pertinent
to notice that in the entire provisions of the Dissolution of
Muslim Marriage Act, there was no provision for granting
interim alimony.

4.1 Surprisingly, the learned Principal Judge, Family
Court, thereafter adverted to the provisions of the Hindu
Marriage Act, 1955 and adopted analogy of the said Act
of 1955 finally to grant interim alimony. The learned
Principal Judge proceeded by observing thus,

“….. At this juncture, if we take analogy and perused
provisions of Hindu Marriage Act, 1955, there is provision
for interim alimony, so that plaintiff and/or defendant
having no source of income can survive during the period
of pendency of entire suit. That on being applying same
analogy, though there is no specific provision for interim
alimony, this Court has inherent power and jurisdiction to
grant interim alimony to plaintiff, so that, plaintiff is not
required to depend upon anybody and/or beg from other
including her father so as to survive herself and to
contest this petition till suit is finally adjudicated.”

5. Section 24 of the Hindu Marriage Act, 1955 which
related to the maintenance pendente lite and expenses
of proceedings was resorted to and relied on to hold that
the plaintiff would entitle to get interim alimony till the
final adjudication of the suit. The learned Principal Judge,

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Family Court, went on to reason that the financial
position of the petitioner was good and that his family
members had been holding number of industries. Finally,
Exh.5 application was allowed as aforesaid.

5.1 Thus, it can be evidently seen that though the statute
of Dissolution of Muslim Marriage Act, under which the
suit was institute, did not provide for grant of interim
alimony and the Act did not have any such provision to
be applied in favour of the petitioner, the learned
Principal Judge misdirected himself to consider the
provisions of the Hindu Marriage Act, 1955. These
provisions were not applicable, however the learned
Principal Judge applied analogy of Section 24 of the said
Act and allowed interim alimony to the petitioner. The
impugned order dated 15th June, 2017 below application
Exh.5 is thus manifestly infirm in law. The provisions of
the Hindu Marriage Act which was never applicable to the
facts of the case, were applied by the learned Principal
Judge, Family Court.

6. Therefore, order dated 15th June, 2017 below
application Exh.5 is required to be quashed. It is
expedient in the facts and circumstances of the case to
remit back the proceedings of Exh.5 to the learned
Family Court, Ahmedabad, for deciding the same afresh.
Resultantly, order dated 15th June, 2017 passed by
learned Principal Judge, Family Court, Ahmedabad, below
application Exh.5 in Family Suit No.257 of 2017 is hereby
set aside. The proceedings of Exh.5 application in the
said suit stands remitted to the court of learned Principal
Judge, Family Court, Ahmedabad, who shall take up the
proceedings afresh and decide the same within a period
of three months from the date of receipt of this order.
Learned Principal Judge, Family Court, also endeavour to
ensure that the suit itself is expeditiously decided.

6.1 It goes without saying that the exercise of taking
decision shall be under the provisions of the Dissolution
of Muslim Marriage Act, 1939 in respect of which parties
through their learned advocates have no dispute.

6.2 Since order below Exh.5 application dated 15th
June, 2017 is set aside as above, the challenge to order
dated 14th July,2017 below Exh.14 in the very Family
Suit which is subject matter of challenge in Special Civil

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Application No.14876 of 2017 would not survive.”

2.6 The Family Court framed the following issues for the
purpose of deciding the Family Suit No.257 of 2017 instituted
by the plaintiff, seeking a decree of divorce;

“(1) Whether the plaintiff proves that defendant
husband has neglected or has failed to provide her
maintenance for a period of two years?

(2) Whether plaintiff proves that defendant husband
has failed to perform, without reasonable cause, his
marital obligations for a period of three years?

(3) Whether plaintiff proves that defendant husband
has treated her with cruelty as alleged in the plaint?

(4) Whether plaintiff proves any other ground for
divorce?

(5) Whether plaintiff is entitled to get decree of divorce
as prayed for?

(6) Whether plaintiff is entitled to get “Stridhan” from
defendant as prayed for?

(7) Whether plaintiff is entitled to get maintenance at
the rate of Rs.25,000/- per month and/or any other
amount?

(8) What order and decree?”

2.7 The issues framed by the Family Court, referred to above,
came to be answered as under;

“(1) In the affirmative.

(2) In the affirmative.

(3) In the affirmative
(4) In the negative.

(5) In the affirmative
(6) In the negative.

(7) In the affirmative, Rs.10,00,000/- by way of
permanent lifetime lump sum maintenance.
(8) As per the final order.”

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2.8 The issue No.7 with regard to permanent
alimony/maintenance came to be answered by the Family
Court as under;

“30. In Danial Latifi’s case the constitutional validity of
Section 3 of the 1986 Act was challenged. Upon
considering in detail the Hon’ble Court summed up its
conclusion as under;

“(1) A Muslim husband is liable to make reasonable and
fair provision for the future of the divorced wife which
obviously includes her maintenance a well. Such a
reasonable and fair provision extending beyond the Iddat
period must be made by the husband within the Iddat
period in terms of Section 3(1) of the Act.

(2) Liability of Muslim husband to his divorced wife
arising under Section 3(1)(a) of the Act to pay
maintenance is not confined to Iddat period.

(3) A divorced Muslim woman has not remarried and
who is not able to maintain herself after Iddat period
proceeds as provided under Section 4 of the Act against
her relatives who are liable to maintain her in proportion
to the properties which they inherit on her death
according to Muslim law from such divorced woman
including her children and parents. If any of the relatives
being unable to pay maintenance the Magistrate may
direct the State Wakf Board established under the Act to
pay such maintenance.

(4) The provisions of the Act do not effect Articles 14,
15 and 21 of the Constitution of India.”

33. It was observed that even after divorce and the
period of Iddat, the former husband will not be
exonerated from his liability of making reasonable and
fair provision for future of the divorced wife and also her
maintenance. But these provisions are to be made by
husband within the period of Iddat. This liability of
former husband was considered under the Act itself and
not beyond that including Section 125 of Cr.P.C.

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34. It is, therefore, clear that the liability of a Muslim
Husband to his divorced wife arising under Section 3(1)

(a) of the Act to pay maintenance will not be confined to
Iddat period only. He has to make reasonable and fair
provision for future of the divorced wife which obviously
includes her maintenance as well. It is obligatory for the
husband to make these provisions within the period of
Iddat. After divorce that liability of the Muslim husband is
under 3 of the Act and not under section 125 of the Code
of Criminal Procedure.

35. It was held in Danial Latifi’s case that it cannot be
accepted that Muslim husband is totally exonerated after
giving divorce to his wife. In the aforesaid judgment the
Apex Court held that the liability of the Muslim husband
to his divorced wife arising under Section 3(1)(a) of Act to
pay maintenance is not confined to Iddat period only. He
has to make reasonable and fair provisions within the
period of Iddat for future of the divorced wife. i.e., even
for post Iddat period also which obviously included her
maintenance as well. In case the husband does not make
arrangement, court can direct him to make reasonable
provision and if the respondent fails to comply the
direction, coercive steps under sub-section (4) of section
3 of the Act are taken against him.

36. A careful reading of the provisions of the Act would
indicate that a divorced woman is entitled to a
reasonable and fair provision for maintenance. It was
stated that Parliament seems to intend that the divorced
woman gets sufficient means of livelihood, after the
divorce, and therefore, the word provision indicates that
something is provided in advance for meeting some
needs. In other words, at the time of divorce the Muslim
husband is required to contemplate the future needs and
make preparatory arrangements in advance for meeting
those needs. Reasonable and fair provision may include
provision for her residence, her food, her cloths and other
articles. The expression within should be read as during
or for and this cannot be done because words cannot be
construed contrary to their meaning as the word within
would mean on or before, not beyond and, therefore, it
was held that the Act would mean that on or before the
expiration of the iddat period, the husband is bound to
make and pay a maintenance to the wife and if he fails to
do so then the wife is entitled to recover it by filing an

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application before the Magistrate as provided in section
3(3) but no where the Parliament has provided that
reasonable and fair provision and maintenance is limited
only for the iddat period and not beyond it. It would
extend to the whole life of the divorced wife unless she
gets married for a second time.

37. L.A of the plaintiff has placed reliance on three
judgments (1) Iqbal Bano vs. State of U.P and Anr.
Delivered by Hon’ble Supreme Court of India on 5.6.2007
in Appeal (Cr.) No.795 of 2001; (2) Shamim Bano vs.
Asraf Kahn delivered by Hon’ble Supreme Court of India
on 16.04.2014 in Criminal Appeal No.820 of 2014; and (3)
Maria Munnisa Begum vs. Noore Mohammad Saheb
reported in AIR 1965 AP 231. This court has gone through
the aforesaid judgments.

38. It is, thus, clear that Muslim husband is liable to
make reasonable and fair provision for the future of the
divorced wife which obviously includes her maintenance
as well as such a reasonable and fair provision extending
beyond the iddat period must be made by the husband
within the iddat period in terms of section 3(1)(a) of the
Act.

39. So far as maintenance is concerned, plaintiff has
submitted that defendant and his family members are
rich; defendant, his father and brothers are engaged in
the business of spare parts of mill machinery and
hardware in the name and style of Shama Industries. The
plaintiff has further submitted that defendant, his father
and brothers are also engaged in the business of iron
scraps in the names and style of “F.H. Scrap Traders”
and “Gool Industries” and “R.H. Steel Enterprise” on
wholesale basis at Vatva, Ahmedabad. The defendant is
also holding godowns for storing iron scraps in different
parts of Ahmedabad city and defendant earns
Rs.1,00,000/- p.m. Out of his business and his father and
brothers are earning Rs.5,00,000/- p.m. It has been
submitted that plaintiff has no source of income to
maintain herself as she does not know any skill or trade.

40. As against plaintiff, defendant has denied all
allegations made against him and has submitted that
defendant shall prove such allegations by strict proof.
The defendant has submitted that defendant does not do

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any kind of business and he does labour work and earns
only Rs.4000/- p.m. The defendant has submitted that
plaintiff is doing sewing and fashion designing work and
plaintiff is also earning huge amount from boutique work.

41. There is no iota of evidence on record that plaintiff
is engaged in any earning activity and plaintiff has
independent income to maintain herself?

42. In view of the provisions of section 105 of the Indian
Evidence Act burden lies upon the defendant/husband to
prove his income by leading cogent and reliable
evidence. The defendant has miserably failed to prove
that he does only labour work and earns Rs.4,000/-.

43. It is pertinent to note that plaintiff wife has filed
Cr.M.A No.870 of 2011 for obtaining maintenance under
section 125 of the Code of Criminal Procedure, 1973,
and after hearing the parties and recording the evidence
of both parties, this Court has granted maintenance at
the rate of Rs.7,000/- p.m. From 1.1.2016 and onwards
on merit. The certified copy of the said judgment is
produced on record.

44. It is clear from the appreciation of evidence on
record that defendant is engaged in the joint family
business of spare parts of mill machinery, hardware and
iron scrap and such business is on wholesale basis.

45. As stated above, defendant failed to discharge his
legal obligation to prove his income, and therefore,
adverse inference can be drawn as provided under
section 114(g) of the Indian Evidence Act. After taking
into consideration the fact that defendant is engaged in
joint family business of spare parts of mill machinery,
hardware and iron scrape, the notional monthly income
of defendant can safely be assessed at Rs.40,000/-

46. In view of what is discussed herein above,
defendant is liable to make reasonable and fair provision
and maintenance for plaintiff/wife, and considering the
requirement of plaintiff and ever increasing prices of
essential commodities, it would be just and proper to
grant Rs.10,00,000/- to the plaintiff towards her lifetime
permanent lump sum maintenance, which in the opinion
of this court is reasonable and fair provision for future

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maintenance of plaintiff.

47. Admittedly, the defendant is ordered to pay
maintenance to plaintiff in other proceedings under other
statutes. It is obvious that if the defendant pays
aforesaid permanent lump sum maintenance to plaintiff,
the orders passed to pay maintenance to plaintiff under
other Acts in different proceedings shall come to an end
and plaintiff shall not be entitled to claim maintenance as
ordered in other proceedings under different statues as
the aforesaid amount of maintenance is full and final for
lifetime maintenance of plaintiff.”

2.9 The operative part of the order passed by the Family
Court, partly allowing the family suit instituted by the plaintiff
reads thus;

“(1) This suit is hereby partly allowed and decreed.

(2) it is hereby ordered that marriage solemnized by
and between plaintiff and defendant on 13.06.2009 to
this suit is hereby dissolved on the grounds of (a)
defendant has neglected and has failed to provide
maintenance to plaintiff for a period of two years; (b)
defendant has failed to perform, without reasonable
cause, his marital obligations for a period of three years;
and (c ) defendant has treated plaintiff with cruelty
under Sections 2(ii), 2(iv) and 2(viii) of the Dissolution of
Muslim Marriages Act, 1939, respectively.

(3) It is hereby ordered that defendant shall pay
Rs.10,00,000/- (Rupees Ten Lacs only) to the plaintiff
towards her permanent life time lump sum maintenance
as provided under Section 3(1)(a) of the Muslim Women
(Protection of Rights on Divorce) Act, 1986. It is hereby
made it clear that if the defendant pays aforesaid
amount to plaintiff, the plaintiff shall not be entitled to
claim maintenance granted to her by different orders in
different proceedings under different statutes.

(4) The prayer prayed by plaintiff to order the
defendant to return her Stridhan is hereby rejected.

(5) it is hereby ordered that defendant shall pay

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Rs.10,000/- (Rupees Ten Thousand Only) to plaintiff
towards the costs of this suit and shall bear his own
costs.

(6) The decree shall follow accordingly.”

2.10 Being dissatisfied with the judgment and decree
passed by the Family Court, the defendant (husband) is here
before this Court with the present appeal.

Submissions on behalf of the appellant-original
defendant:

3. Mr. Mehul Suresh Shah, the learned senior counsel
appearing for the appellant at the outset submitted that he is
confining his challenge in this appeal only to that part of the
decree by which the Family Court has awarded Rs.10,00,000/-
in favour of the wife towards lump sum permanent alimony for
her maintenance. Mr. Shah would submit that the order
passed by the Family Court, awarding permanent alimony in
favour of the wife is without jurisdiction. Mr. Shah would
submit that the suit instituted by the wife could be said to be
under the provisions of the Dissolution of Muslim Marriage Act,
1939 and the Act of 1939 does not provide for any
maintenance. It is further submitted that after coming into
force of the Muslim Women Act, 1986, a Muslim woman can
apply under Sections 3 and 4 of the said Act only to the
Magistrate of the First Class having jurisdiction under the
Criminal Procedure Code for maintenance. The Family Court
cannot deal with such applications. In other words, after the
commencement of the Muslim Women Act, 1986, a Muslim
divorced wife cannot even apply for maintenance under the
provisions of Chapter-IX of the Code. It is only under Section 5

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of the Muslim Women Act by agreement can the husband and
the divorced wife approach a Magistrate under Chapter-IX of
the Code.

4. The learned senior counsel would argue that the liability
of the husband to pay maintenance to a divorced wife ceases
the moment the Iddat period gets over. He has to pay
maintenance to her within the Iddat period for the Iddat period.
According to the learned senior counsel, the husband, of
course, has to make reasonable and fair provision for his wife
within the Iddat period which should take care of her for the
rest of her life or till she incurs any disability under the Act,
1986.

5. Mr. Shah would submit that the reliance placed by the
Family Court on the decision of the Supreme Court in the case
of Danial LatifI Anr. vs. Union of India, 2001 (7) SCC 740
is completely misplaced.

6. Mr. Shah seeks to place reliance on a Full Bench decision
of the Bombay High Court in the case of Karim Abdul
Rehman Shaikh vs. Shehnaz Karim Shaikh Ors., 2000
Cri. L.J., 3560. In the Full Bench decision of the Bombay High
Court, referred to above, the Hon’ble Judges addressed
themselves on four questions. The same are as under;

“((i) Whether the Muslim husband’s liability under section
3(a) of the Muslim Women Act to make a reasonable and
fair provision and pay maintenance is only restricted to
the iddat period or whether it extends beyond the iddat
period?

(ii) Whether the Muslim Women Act has the effect of
invalidating the orders/judgments passed under section 125
of the Code i.e. whether the Muslim Women Act operates

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retrospectively so as to divest parties of vested rights?

(iii) Whether after the commencement of the Muslim
Women Act, a Muslim divorced wife can apply for
maintenance by invoking the provisions of Chapter IX of
the Code?

(iv) Whether the Family Court has jurisdiction to try
applications of the Muslim divorced women for
maintenance after coming into force of the Muslim Women
Act?”

7. The Full Bench answered the aforesaid four questions as
under;

“(i) The husband’s liability to pay maintenance to a
divorced wife ceases the moment iddat period gets over.
He has to pay maintenance to her within the iddat period
for the iddat period. But he has to make reasonable and
fair provision for her within iddat period, which should
take care of her for the rest of her life on till she incurs
any disability under the Muslim Women Act. While deciding
the amount regard will be had to the needs of the
divorced women, the standard of life enjoyed by her
during her marriage and the means of her former
husband and the like circumstances. If the husband is
unable to arrange for such a lumpsum payment he can
ask for instalments and the Court shall consider granting
him instalments. Till the husband makes the fair and
reasonable provision, the Magistrate may direct monthly
payment to be made to the wife even beyond the iddat
period subject to the fixation of the amount of fair and
reasonable provision.

(ii) The orders passed under section 125 of the Code
prior to the enactment of the Muslim Women Act are not
nullified by reason of the coming into force of the Muslim
Women Act. Such orders are binding on both sides and can
be executed under section 128 of the Code. The Muslim
Women Act does not divest the divorced women of the
right to get maintenance under section 125 of the Code
vested in her by reason of orders of a competent Court
passed prior to its coming into force.

(iii) After commencement of the Muslim Women Act, a

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Muslim divorced wife can not apply for maintenance
under the provisions of Chapter IX of the Code. It is only
under section 5 of the Muslim Women Act by agreement
can the husband and the divorced wife approach a
Magistrate under Chapter IX of the code.

(iv) After coming into force of the Muslim Women Act, a
Muslim Women can apply under sections 3 and 4 of the
said Act only to Magistrate of the First Class having
jurisdiction under the Code. The Family Court cannot deal
with such applications. ”

8. In short, the principal argument of Mr. Shah is that there
is no provision in any enactment which empowers the Family
Court to award permanent alimony while granting the decree
of divorce in favour of the wife.

9. In such circumstances, referred to above, Mr. Shah prays
that there being merit in his appeal, the order of grant of
permanent alimony be quashed and set aside.

Submissions on behalf of the respondent (original
plaintiff/wife)

10. On the other hand, this appeal has been vehemently
opposed by Mr. Nishit Gandhi and Mr. Shaswat Shukla, the
learned counsel appearing for the wife. Both the learned
counsel would submit that no error, not to speak of any error
of law, could be said to have been committed by the Family
Court in passing the order of permanent alimony in favour of
the wife. The learned counsel would submit that the issue in
this regard stands sufficiently answered by the Supreme Court
in the case of Danial Latifi (supra). The learned counsel
pointed out that in Danial Latifi (supra), the subject matter of
challenge was to the constitutional validity of the Muslim
Women (Protection of Rights on Divorce) Act, 1986. The

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Supreme Court, while upholding the validity of the Act, held as
under;

“1) A Muslim husband is liable to make reasonable and
fair provision for the future of the divorced wife which
obviously includes her maintenance as well. Such a
reasonable and fair provision extending beyond the iddat
period must be made by the husband within the iddat
period in terms of Section 3(1)(a) of the Act.

2) Liability of Muslim husband to his divorced wife arising
under Section 3(1)(a) of the Act to pay maintenance is
not confined to iddat period.

3) A divorced Muslim woman who has not remarried and
who is not able to maintain herself after iddat period can
proceed as provided under Section 4 of the Act against
her relatives who are liable to maintain her in proportion
to the properties which they inherit on her death
according to Muslim law from such divorced woman
including her children and parents. If any of the relatives
being unable to pay maintenance, the Magistrate may
direct the State Wakf Board established under the Act to
pay such maintenance.

4) The provisions of the Act do not offend Articles 14, 15
and 21 of the Constitution of India. ”

11. The learned counsel, in the last, submitted that the right
of maintenance and the right in the matrimonial property or
the consequences of the marriage or its dissolution, are reliefs
incidentally to the main relief of the “dissolution of marriage”
and, therefore, such reliefs are very much an integral part of
the decree of “dissolution of marriage”. It is submitted that if
need be, the Court may be justified in exercising its inherent
powers to protect the interest of the wife. In such
circumstances, referred to above, Mr. Gandhi prays that there
being no merit in this appeal, the same be dismissed.

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ANALYSIS

12. Having heard the learned counsel appearing for the
parties and having gone through the materials on record, the
only question that falls for our consideration is whether the
Family Court committed any error in passing the order of
permanent alimony in favour of the wife while granting decree
of divorce to the wife?

Family Courts Act, 1984

13. The preamble of the Family Courts Act, 1984 reads as
under;

“An act to provide for the establishment of Family Courts
with a view to promote conciliation in, and secure speedy
settlement of disputes relating to marriage and family
affairs and for matters connected therewith.”

14. The statement of objects and reason of Family Courts Act
are necessary to appreciate the scope of the jurisdiction of the
Family Courts. The same are quoted herein :

“Several associations of women, other organisations and
individuals have urged, from time to time, that Family
Courts be set up for the settlement of family disputes,
where emphasis should be laid on conciliation and
achieving socially desirable results and adherence to
rigid rules of procedure and evidence should be
eliminated. The Law Commission in its 59th Report
(1974) had also stressed that in dealing with disputes
concerning the family Courts ought to adopt an approach
redically different from that adopted in ordinary civil
proceedings and that it should make reasonable efforts
at settlement before the commencement of the trial. The

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Code of Civil Procedure was amended in 1976 to provide
for a special procedure to be adopted in suits or
proceedings relating to matters concerning the family.
However, not much use has been made by the Courts in
adopting this conciliatory procedure and the Courts
continue to deal with family disputes in the same manner
as other civil matters and the same adversary approach
prevails. The need was, therefore, felt, in the public
interest, to establish Family Courts for speedy settlement
of family disputes.”

15. The Bill inter alia, seeks to :

(a) provide for establishment of Family Courts by the State
Government;

(b) make it obligatory on the State Governments to set up a
Family Court in every city or town with a population exceeding
one million;

(c) enable the State Governments to set up such Courts in
areas other than those specified in (b) above;

(d) exclusively provide within the jurisdiction of the Family
Courts the matters relating to:

(i) matrimonial relief, including nullity of marriage, judicial
separation, divorce, restitution of conjugal rights, or
declaration as to the validity of a’ marriage or as to the
matrimonial status of any person;

(ii) the property of the spouses or of either of them;

(iii) declaration as to the legitimacy of any person;

(iv) guardianship of a person or the custody of any minor;

(v) maintenance, including proceedings under Chapter IX of

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the Code of Criminal Procedure;

(e) make it obligatory on the part of the Family Court to
endeavour, in the first instance to effect a reconciliation or a
settlement between the parties to a family dispute. During this
stage, the proceedings will be informal and the rigid rules of
procedure shall not apply;

(f) provide for the association of social welfare agencies,
counsellors, etc., during conciliation stage and also to secure
the services of medical and welfare experts;

(g) provide that the parties to a dispute before a Family Court
shall not be entitled, as of right, to be represented by legal
practitioner. However, the Court may, in the interest of justice
seek assistance of a legal expert as amicus curiae;

(h) simplify the rules of evidence and procedure so as to
enable a Family Court to deal effectually with a dispute;

(i) provide for only one right of appeal which shall lie to the
High Court.

16. The Bill seeks to achieve the above objects.”

17 Clause 2(d) noted above specifically provides for bringing
in within the jurisdiction of the Family Courts the matters
relating to matrimonial relief, including nullity of marriage,
judicial separation, divorce, restitution of conjugal rights etc.
matter also relating to the property of spouse or either of
them, and also all issues relating to maintenance including
proceeding under Chapter IX of Cr.P.C.

18. Few other provisions of the Family Courts Act, 1984 need
be noticed;

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19. Section 3 provides for the establishment of Family Court.
Section 3(1) provides that the State Government in
consultation with the High Court shall establish a Family Courts
for every area in the state comprising the city or town whose
population exceeds one million. The Family Court Act also
provides that the State Government may establish Family
Courts for such other areas as the State Government deem it
necessary. Sub-section (2) of Section 3 provides that the State
Government after consultation with the High Court, specify, by
notification, the local limits of the area. Section 4 provides that
the State Government shall appoint one or more persons to be
Judge or Judges of the Family Court with the concurrence of the
High Court. Section 4(3) provides the qualification for
appointment of the Judge of the Family Court wherein it is
stated that a person should have at least seven years’
experience of holding a judicial office or should have an
experience of seven years as an Advocate in the High Court.
Section 4(4) provides that preference shall be given to women
in the appointment of Family Court Judge.

20. Section 7 provides for the jurisdiction of the Family Court.
Section 7(1) provides that the Family Court shall exercise
jurisdiction exercisable by any District Court or by any
Subordinate Civil Court under any law for the time being in
force in respect of the suits and proceedings of the nature
referred to in the explanation and also provides that the Family
Court shall be deemed to be a District Court or as the case
may be, such subordinate Civil Court for the area to which the
jurisdiction of the Family Court extends.

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21. Explanation to Section 7 gives details of the proceedings
in which the Family Court will have the jurisdiction.
Explanations (a), (b), (c) and (f) are relevant which may be
taken note of:

“(a) a suit or proceeding between the parties to a
marriage for a decree of nullity of marriage (declaring the
marriage to be null and void or, as the case may be,
annulling the marriage) or restitution of conjugal rights or
judicial separation or dissolution of marriage;

(b) a suit or proceeding for a declaration as to the validity
of a marriage or as to the matrimonial status of any
person;

(c) a suit or proceeding between the parties to a
marriage with respect to the property of the parties or of
either of them;

(f) a suit or proceeding for maintenance.”

22. Section 7(2) provides that the jurisdiction exercisable by
the Magistrate of the First Class under Chapter IX of the Code
of Criminal Procedure, 1973 and any other jurisdiction which
may be conferred on the Court by such Act will also be within
the jurisdiction of the Family Court.

23. Section 8 excludes the jurisdiction of the other Courts in
the matters provided under Section 7 of the Act and also
provides that the proceedings covered by Section 7 of the Act
shall stand transferred to the Family Court on the
establishment of the said Courts in the area.

Muslim Women (Protection of Rights on Divorce) Act,
1986:-

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24. The provisions of The Muslim Women (Protection of
Rights on Divorce) Act, 1939 (referred to as ‘Act’) need be
scanned.

25. The Act came into force on 19.05.1986. Section 7 of the
Act requires that every application by a divorced woman under
Section 125 or 127 of the Criminal Procedure Code pending
before any Magistrate on the commencement of the Act, shall,
not withstanding anything contained in the Code and subject
to the provisions of Section 5 of the Act, be disposed of by
such Magistrate in accordance with the provisions of the Act.

26. Section 3 of the Act is reproduced for convenience:

“3. Mahr or other properties of Muslim Women to be
given to her at the time of divorce :-

(1) Notwithstanding anything contained in any other law
for the time being in force, a divorced woman shall be
entitled to :

(a) a reasonable and fair provision and maintenance to
be made and paid to her within the Iddat period by her
former husband;

(b) where she herself maintains the children born to her
before or after her divorce, a reasonable and fair
provision and maintenance to be made and paid by her
former husband for a period of two years from the
respective dates of birth of such children;

(c) an amount equal to the sum of Mahr or dower agreed
to be paid to her at the time of her marriage or at any
time thereafter according to Muslim Law; and

(d) all the properties given to her before or at the time of
marriage or after her marriage by her relatives or friends
or the husband or any relatives of the husband or his
friends.

(2) Where a reasonable and fair provision and
maintenance or the amount of Mahr or dower due has

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not been made or paid or the properties referred to in
Caluse (d) of Sub-section (1) have not been delivered to a
divorced woman on her divorce, she or any only duly
authorised by her may, on her behalf, make an
application to a Magistrate for an order for payment of
such provision and maintenance, Mahr or dower or the
delivery of properties, as the case may be.
(3) Where an application has been made under Sub-
section (2) by a divorced woman, the Magistrate may, if
he is satisfied that:-

(a) her husband having sufficient means, has failed or
neglected to make or pay her within the Iddat period a
reasonable and fair provision and maintenance for her
and the children; or

(b) the amount equal to the sum of Mahr or dower has
not been paid or that the properties referred to in Clause

(d) of Sub-section (1) have not been delivered to her,
make an order, within one month of the date of filing of
the application, directing her former husband to pay such
reasonable and fair provision and maintenance to the
divorced woman as he may determine as fit and proper
having regard to the needs of the divorced woman, the
standard of life enjoyed by her during her marriage and
the means of her former husband or, as the case may be
for the payment of such Mahr or dower or the delivery of
such properties referred to in Clause (d) of Sub-section
(1) to the divorced woman;

Provided that if the Magistrate finds it impracticable to
dispose of the application within the said period, he may
for reasons to be recorded by him dispose of the
application after the said period.

(4) If any person against whom an order has been made
under Sub- section (3) fails without sufficient cause to
comply with the order, the Magistrate may issue a
warrant for having the amount of maintenance or mahr
or dower due in the manner provided for levying fines
under the Code of Criminal Procedure, 1973 (2 of 1974),
and may sentence such person, for the whole or part of
any amount remaining unpaid after the execution of the
warrant, to imprisonment for a term which may extend to
one year or until payment if sooner made, subject to
such person being heard in defence and the said
sentence being imposed according to the provisions of
the said Code.”

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27. Under Section 3 of the Act it is provided that
notwithstanding anything contained in any other law the
divorced woman shall be entitled to a reasonable and fair
provision and main tenance to be made and paid to her during
the Iddat period by her former husband. Clause (b) of Section 3
provides that where she herself maintains the children born to
her before or after her divorce, a reasonable and fair provision
and maintenance to be made and paid by her former husband
for a period of two years from the respective dates of birth of
such children, Clause (c) of the aforesaid section provides that
an amount equal to the sum of Mahr or dower agreed to be
paid to her at the time of her marriage or at any time
thereafter according to Muslim Law. Clause (d) of the aforesaid
section provides that all the properties given to her before or
at the time of marriage or after her marriage by her relatives
or friends or the husband or any relatives of the husband or his
friends. Sub-section (3) of the aforesaid section provides
procedure for making application wherein it is contemplated
that an application is to be made by a divorced woman to the
Magistrate and the Magistrate being satisfied that her husband
having sufficient means, has failed or neglected to make or
pay her within the Iddat period a reasonable and fair provision
and maintenance for her and the children or the amount equal
to the sum of Mahr or dower has not been paid or that the
properties referred to in Clause (d) of Sub- section (1) have not
been delivered to her, will make an order directing her former
husband to pay maintenance to the divorced wife for the
period of Iddat and also may direct for payment of such Mahr
or dower or delivery of such properties referred to in Clause (d)
of Sub-section (1) to the divorced woman.

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28. A bare perusal of Section 3 of the Act demonstrates that
the dispute relates to a proceedings between the parties to the
marriage for a divorce and for maintenance as well as in
respect of the properties of the parties to the marriage. Under
Mohammedan Law Mahr and dower are the properties of the
wife. Under Section 3 of the Act, the petitioner is to be made
claiming maintenance for the period of Iddat after divorce,
claiming maintenance for the child born from the former
husband and claiming Mahr and dower or a sum equivalent
thereto which are admittedly the properties between the
parties to the marriage. All the aforesaid claims, which a
divorced wife under the Act is supposed to make before a
Magistrate are squarely covered by the Explanations of Section
7 of the Family Courts Act.

29. It was realised that the family disputes should either be
settled or should be amicably resolved and it was also realised
that since the Courts are over- burdened with their arrears, the
dispute between the husband and wife, the two important
constituents of a family and also many times the plight of the
minor children require special and urgent attention and for
giving special attention to the disputes of the family and for
resolution of the same expeditiously, the Family Court, Act was
enacted.

30. Section 20 of the Family Courts Act gives an over-riding
effect to the provisions of the Act over all other enactments.
The Family Courts Act has in its comprehension all community
including the Muslims. All disputes between the Muslim

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community within the purview of the Family Courts Act are
settled by the Family Courts. It cannot be doubted for a minute
that the dispute contemplated by Section 3 of the Act, 1939 is
within the purview and four corners of the Family Courts Act,
as the dispute under Section 3 of the Act also relates to
matrimonial relations between the parties and as a
consequence of this matrimonial relations having been broken,
entitlement of divorced wife after breaking of the matrimonial
relations with her husband begins.

The Dissolution of Muslim Marriages Act, 1939

31. The Act, 1939 came to be enacted to consolidate and
clarify the provisions of Muslim Law relating to suits for
dissolution of marriage by women married under Muslim Law
and to remove the doubts as to the effect of the renunciation
of Islam by a married Muslim woman on her marriage tie.
Section 2 of the Act, 1939 reads thus;

“2. Grounds for decree for dissolution of marriage. ? A
woman married under Muslim law shall be entitled to
obtain a decree for the dissolution of her marriage on any
one or more of the following grounds, namely:

(i)that the whereabouts of the husband have not been
known for a period of four years; (ii)that the husband has
neglected or has failed to provide for her maintenance
for a period of two years;

(iii)that the husband has been sentenced to
imprisonment for a period of seven years or upwards;

(iv)that the husband has failed to perform, without
reasonable cause, his marital obligations for a period of
three years;

(v)that the husband was impotent at the time of the

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marriage and continues to be so;

(vi)that the husband has been insane for a period of two
years or is suffering from leprosy or a virulent venereal
disease;

(vii)that she, having been given in marriage by her father
or other guardian before she attained the age of fifteen
years, repudiated the marriage before attaining the age
of eighteen years:

Provided that the marriage has not been consummated;

(viii)that the husband treats her with cruelty, that is to
say, ?

(a) habitually assaults her or makes her life miserable by
cruelty of conduct even if such conduct does not amount
to physical ill-treatment, or

(b) associates with women of evil repute or leads an
infamous life, or

(c) attempts to force her to lead an immoral life, or

(d) disposes of her property or prevents her exercising
her legal rights over it, or

(e) obstructs her in the observance of her religious
profession or practice, or

(f) if he has more wives than one, does not treat her
equitably in accordance with the injunctions of the
Quran;

(ix)on any other ground which is recognised as valid for
the dissolution of marriages under Muslim law:

Provided that

(a)no decree shall be passed on ground (iii) until the
sentence has become final;

(b) a decree passed on ground (i) shall not take effect for
a period of six months from the date of such decree, and
if the husband appears either in person or through an
authorised agent within that period and satisfied the

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Court that he is prepared to perform his conjugal duties,
the Court shall set aside the said decree; and

(c)before passing a decree on ground (v) the Court shall,
on application by the husband, made an order requiring
the husband to satisfy the Court within a period of one
year from the date of such order that he has ceased to
be impotent, and if the husband so satisfies the Court
within such period, no decree shall be passed on the said
ground.”

32. Section 5 provides that the rights to dower shall not be
effected. Section 5 reads thus;

“5. Rights to dower not to be affected-Nothing contained
in this Act shall affect any right which a married woman
may have under Muslim law to her dower or any part
thereof on the dissolution of her marriage.”

33. What is alimony?

The term alimony is derived from the Latin word
‘Alimonia’ which means sustenance. It is also referred to as the
spousal support or maintenance. It is a legal obligation of a
partner to their spouse to provide financial support after the
course of a divorce. This financial support is based on the
family laws of the country. This alimony is decided based on
the earning power and the person economically dependent on
the marriage.

There are mainly two types of alimony-

1. Given at the time of court proceedings- This is usually the
maintenance amount.

2. Given at the time of legal separation- This can be given
either in a lump sum or as a fixed monthly or quarterly
payment or as per the requirements of the spouse.

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34. Alimony Laws in India;

The personal laws of different religions in India govern
the maintenance rights of a woman. These personal laws deal
with marriage, divorce, and the maintenance for which there
are various provisions for people who can claim maintenance.

Let’s look at various different laws for the same:-

1. Alimony under Hindu Law

In Hinduism, it is considered that it is the spiritual duty of
the husband to maintain his wife and give her all the comforts.

Under Section 24 of the Hindu Marriage Act, 1955, both
the wife and the husband are entitled to claim maintenance
from their spouse. Thus, this section does not differentiate
between a male and a female. This maintenance depends on
certain factors like the husband’s earnings, assets liabilities,
wife’s financial standing, employment, etc.

When the couple decides to get divorced by mutual
consent, the decision on the alimony to be paid by either of the
party is on the account of their decision and mutual
understanding. But in contested matters, the issue of alimony
is decided on the merits of each case. It is also possible that no
alimony is given at all based on the facts and circumstances.
The maintenance amount depends entirely on the discretion of
the court.

The wife also has an additional option to claim
maintenance under Section 18 of the Hindu Adoptions and
Maintenance Act, 1956. The entitlement to alimony is based on

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the following:-

If the husband abandons her, without any justified
reason, without her consent.

If the husband treats her with cruelty.

If the husband has another wife.

If the husband suffers from a virulent form of leprosy.
If the husband has concubine in the same house.
If the husband converted to another religion.
If there is some other reason for the wife to live
separately.

This section is read with Section 23 of this Act, which
specifies that it shall be the discretion of the court to
award maintenance if any and what amount to be
awarded.

However, if the couple is married under the Special
Marriage Act, 1954, only the wife has the entitlement to claim
permanent alimony.

2. Alimony under Muslim Law

Here the parties first need to decide which law to file
under, for the purpose of claiming the alimony amount. In
Muslim law, women are the ones given the right to alimony.
According to Sharia, the Muslim women are given the absolute
right to maintenance. The right remains unprejudiced even if
the wife has a good financial standing and the husband is poor.

For the Muslim women, The Muslim Women(Protection of
Rights on Divorce) Act, 1986 lays down the provisions for the
maintenance/alimony. After a divorce she is entitled to:-

A reasonable and fair amount to be paid during the iddat

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period.

An amount equal to the dower agreed to be paid during
the time of marriage.

A title to the property(or properties) given to her either
before or after marriage.

A Muslim woman is also eligible to claim maintenance if:-

She did not remarry and is unable to maintain herself
after the iddat period.

She has children and is unable to support them.
If there isn’t anyone to maintain her, the magistrate
would order the State Wakf Board to pay the
maintenance.

3. Alimony under Christian Law

The Christian law deals with the maintenance of wife
under Section 36, Section 37 and Section 38 of the Indian
Divorce Act, 1869. Section 36 deals with the petition for
expenses and alimony pending the suit. The main object of this
Section is to provide the wife with financial support while the
matrimonial suit is pending.

Section 37 of the Indian Divorce Act, deals with the
matter of permanent alimony. In every case, the court may
order the husband to pay a weekly or monthly sum for her
financial support the court may seem reasonable. If in the
future, the husband is unable to make such payment, the court
may temporarily discharge or suspend the order. There are
some factors taken into account under Section 37:-

Conduct of parties before and after marriage.
Nature and source of husband’s income.

Wife’s own fortune, if any.

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Section 38 of the same Act deals with the rules regarding
the payment of alimony. It may be given to the wife herself or
to any trustee on her behalf. The objective is to ensure the
wife is given alimony.

4. Alimony under Parsi Law

The maintenance of the wife is dealt with under the Parsi
Marriage and Divorce Act, 1988. Section 40, of this Act, deals
with the permanent alimony and maintenance. It authorizes
any court to order the defendant to pay a periodical sum for a
term not exceeding that of the plaintiff’s own life. It is
important for the court to have regard to the conduct of the
parties and the merits of each case.

Apart from the above-mentioned maintenance laws in
different religions, there is also the Right to Maintenance under
Section 125, of the Criminal Procedure Code, 1973 which
was legislated as a tool for social justice. Under this section, a
follower of any religion can apply without any restriction. It
lays down provision for a husband to maintain his wife,
parents, and children if they do not have the adequate means
to maintain themselves financially or suffer from any form of
mental or physical disability. The spouse can file for
maintenance before the court and the court considers the
income, assets, and property of the husband and will provide a
proper maintenance to the required spouse as per the
circumstances and requirement. There is no requirement for a
wife to divorce her husband to get maintenance under this
section.

35. How is the quantum of alimony decided?

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The maintenance amount to be paid is decided by the
court on the basis of some specific parameters. These
parameters are both spouse’s income, net worth and
investment as well as their financial needs and liabilities. Their
standard of living and financial standing is also taken into
account. There is no fixed formula for the decision regarding
the alimony amount, generally, it was considered one-third of
the spouse’s income for paying the alimony. The Supreme
Court in the case of Kalyan Dey Chowdhury vs. Rita Dey
Chowdhary Nee Nandy, Civil Appeal No.5369 of 2017 dated
19.04.2017 ruled that 25% of the husband’s net salary should
be taken as a benchmark to constitute a just and proper
amount of alimony. The court also observed that the amount
must be just enough to live with dignity after the marital
separation.

Certain factors are taken into account that influence the
alimony amount as well as the duration during which it needs
to be paid. They are as follows:-

1. Duration of marriage- marriages that lasted for more
than 10 years are entitled to a lifetime alimony.

2. Age of spouse- A young receipt may get it for a shorter
duration of time keeping in mind their prospective career
excellence and potential to become financially sound.

3. To equalize the economic condition of both spouses- The
higher earning spouse is entitled to pay heavy amount
whereas a lower earning spouse may be asked to pay an
able amount for alimony.

4. Enjoyment of successful career- Such a spouse may be
subject to pay a higher amount of alimony.

5. The health of spouse- If the spouse claiming for alimony
is in poor health, the other spouse will be subjected to
paying high alimony to ensure proper well being and
medication for the spouse.

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6. Child custody- The spouse who maintains child custody
will be entitled to receive a greater amount for the
expenditure incurred on child’s upbringing and
education.

7. Liabilities of the husband(like taking care of his wholly
dependent parents) and flourishing career of the
wife(earning sufficient amount comfortably) will also be
considered. ”

Status of Muslim Women

36. During the early period of Islam, the Muslim women were
held in high esteem and they occupied exalted positions and in
the days of Holy Prophet Mohammad, a Muslim woman was
given in the society a position of equality with the opposite
gender. Equal treatments were meted out to the women. The
ladies of the family of the Prophet were noted for their
learning, their virtue, courage and their strength of character.
(See S.A.Kaders Muslim Law of Marriage and Succession in
India, p. 80-81) Even, in the terms of modern concept of giving
gender justice, which is essential, integral and inseparable part
of human rights, women, who form one half of the human race,
have every right to claim equality before law and equal
protection of laws as envisaged under Article 14 of the
Constitution of India.

37. Therefore, when women have the right to marry, they
have also the right to be maintained by their husbands. This
right has been emphasized in Article 6(1) of the Universal
Declaration of Human Rights adopted and proclaimed by the
General Assembly of the United Nations on 10th December
1948. It declares thus:- Men and women, of full age, without
any limitation due to race, nationality or religion, have the

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right to marry and to found a family. They are entitled to equal
rights as to marriage, during marriage and at its dissolution.

38. The Sura Al-Ahzab, Verse 35 of the Holy Quran, would
clearly show that how the women were treated as equals with
men. The Verse 35 reads thus-

“For Muslim men and women, For believing men and
women, For devout men and women, For true men and
women, For men and women who are Patient and
constant, for men And women who humble themselves,
For men and women who give In charity, for men and
women Who fast For men and women who Guard their
chastity, and For men and women who Engage much in
Allahs remembrance For them has Allah prepared
Forgiveness and great reward. However, in post-Islamic
period, it is seen that the degradation and degeneration
set in, in the status of women. In male-dominated world,
Muslim women were pushed to the whims and fancies of
the men- folk and this is reflected primarily in the case of
dissolution of marriage, i.e., divorce, which is known as
Talaq in Arabic meaning. The doctrine of talaq-ul-bidet
(triple talaq-one form of talaq) was evolved as a
convenient divorce to dissolve the marriage at the will and
whims of the Muslim husband.”

39. Nonetheless, it is incumbent on the part of a Muslim
husband to maintain his wife so long as she is loyal and faithful
to him and obeys his reasonable orders. But once she is
divorced, she is entitled to maintenance as per law being in
force in India, i.e., Muslim Women (Protection of Rights on
Divorce) Act, 1986.

The Holy Koran Translation by Abdullah Yusuf Ali at page
96:

Ayat No. 241–For divorced women
Maintenance (should be provided)

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On a reasonable (scale)
This is a duty on the righteous.

Ayat No. 242–Thus doth God
Make clear His Signs
To you: in order that Ye may understand

The Quran by Md. Zafrullah Khan (page 38)

For divorced women also there shall be provision
according to what is fair. This is an obligation binding on
the righteous. Thus does Allah make His Commandments
clear to you that you may understand.

(emphasis supplied)

40. The meaning of Quran (Vol. I) published by Board of
Islamic Publications, Delhi Ayat 240-241–

Those of you, who shall die and leave wives behind them,
should make a will to the effect that they should be
provided with a year’s maintenance and should not be
turned out of their homes. But if they leave their homes
of their own accord, you shall not be answerable for
whatever they choose for themselves in a fair way; Allah
is All-Powerful, All-wise. Like-wise, the divorced women
should also be given something in accordance with the
known fair standard. This is an obligation upon the God-
fearing people

Ayat 242–

Thus Allah makes clear His Commandments for you: It is
expected that you will use your commonsense.

41. Running commentary of the Holy Quran (1964 Edn.) by
Dr. Allanadh Khadim Rahmani Nuri

Ayat 241–And for the divorced woman (also) a provision
(should be made) with fairness (in addition to her dower);

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(This is) a duty (incumbent) on the reverent.

(emphasis supplied)

Holy Quran–Translated by Mohammed Ali

Ayat 241–And for the divorced woman, provision (must
be made) in kindness. This is incumbent on those who
have regard for duty.

(emphasis supplied)

42. Almost all the Translations are unanimous in regard to
the content and meaning of Ayat 241, namely, that a fair or
reasonable provision should be made for the divorced woman.
S. 3 of the Act has incorporated therein the expression
“reasonable provision”, as distinguished from the expression
“maintenance”, evidently moving away from the observation
of the Supreme Court in Shah Bano’s case that the distinction
between the two expressions is without difference. The
Parliament also appears to have accepted the traditional view
that the right to maintenance ceases after the expiration of
Iddat after talaq. Parliament dissociated itself from the view
expressed by the Supreme Court in Shah Bano’s case that
“provision” and “maintenance” mean the same thing and,
therefore, a divorced woman is entitled, according to the
personal law, to maintenance even after the expiration of the
Iddat period. The Parliament intended to make it clear that the
divorced woman is entitled to maintenance not only for the
Iddat period but is entitled to a distinct and reasonable
provision for the post-Iddat period. This is the only reasonable
construction to be placed on S. 3 of the Act on a consideration
of the plain tenor of the provisions of the Act, the mischief
sought to be avoided, the object sought to be achieved, the

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Shah Bano’s case and its aftermath.”

43. In Danial Latifi (supra), the Supreme Court observed as
under;

“20. In interpreting the provisions where matrimonial
relationship is involved, we have to consider the social
conditions prevalent in our society. In our society,
whether they belong to the majority or the minority
group, what is apparent is that there exists a great
disparity in the matter of economic resourcefulness
between a man and a woman. Our society is male
dominated both economically and socially and women
are assigned, invariably, a dependant role, irrespective of
the class of society to which she belongs. A woman on
her marriage very often, though highly educated, gives
up her all other avocations and entirely devotes herself
to the welfare of the family, in particular she shares with
her husband, her emotions, sentiments, mind and body,
and her investment in the marriage is her entire life a
sacramental sacrifice of her individual self and is far too
enormous to be measured in terms of money. When a
relationship of this nature breaks up, in what manner we
could compensate her so far as emotional fracture or loss
of investment is concerned, there can be no answer. It is
a small solace to say that such a woman should be
compensated in terms of money towards her livelihood
and such a relief which partakes basic human rights to
secure gender and social justice is universally recognised
by persons belonging to all religions and it is difficult to
perceive that Muslim law intends to provide a different
kind of responsibility by passing on the same to those
unconnected with the matrimonial life such as the heirs
who were likely to inherit the property from her or the
wakf boards. Such an approach appears to us to be a
kind of distortion of the social facts. Solutions to such
societal problems of universal magnitude pertaining to
horizons of basic human rights, culture, dignity and
decency of life and dictates of necessity in the pursuit of
social justice should be invariably left to be decided on
considerations other than religion or religious faith or
beliefs or national, sectarian, racial or communal
constraints. Bearing this aspect in mind, we have to
interpret the provisions of the Act in question.

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21. Now it is necessary to analyse the provisions of the
Act to understand the scope of the same. The Preamble
to the Act sets out that it is an Act to protect the rights of
Muslim women who have been divorced by, or have
obtained divorce from, their husbands and to provide for
matters connected therewith or incidental thereto. A
divorced woman is defined under Section 2(a) of the Act
to mean a divorced woman who was married according
to Muslim Law, and has been divorced by, or has
obtained divorce from her husband in accordance with
Muslim Law; iddat period is defined under Section 2(b) of
the Act to mean, in the case of a divorced woman,-

(i) three menstrual courses after the date of divorce, if
she is subject to menstruation;

(ii) three lunar months after her divorce, if she is not
subject to menstruation; and

(iii) if she is enceinte at the time of her divorce, the
period between the divorce and the delivery of her child
or the termination of her pregnancy whichever is earlier.

22. Sections 3 and 4 of the Act are the principal
sections, which are under attack before us. Section 3
opens up with a non-obstante clause overriding all other
laws and provides that a divorced woman shall be
entitled to –

(a) a reasonable and fair provision and maintenance to
be made and paid to her within the period of iddat by her
former husband;

(b) where she maintains the children born to her before
or after her divorce, a reasonable provision and
maintenance to be made and paid by her former husband
for a period of two years from the respective dates of
birth of such children;

(c) an amount equal to the sum of mahr or dower agreed
to be paid to her at the time of her marriage or at any
time thereafter according to Muslim Law; and

(d) all the properties given to her by her before or at the
time of marriage or after the marriage by her relatives,
friends, husband and any relatives of the husband or his
friends.

23. Where such reasonable and fair provision and
maintenance or the amount of mahr or dower due has

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not been made and paid or the properties referred to in
clause (d) of sub-section (1) have not been delivered to a
divorced woman on her divorce, she or any one duly
authorised by her may, on her behalf, make an
application to a Magistrate for an order for payment of
such provision and maintenance, mahr or dower or the
delivery of properties, as the case may be. Rest of the
provisions of Section 3 of the Act may not be of much
relevance, which are procedural in nature.

24. Section 4 of the Act provides that, with an
overriding clause as to what is stated earlier in the Act or
in any other law for the time being in force, where the
Magistrate is satisfied that a divorced woman has not re-
married and is not able to maintain herself after the iddat
period, he may make an order directing such of her
relatives as would be entitled to inherit her property on
her death according to Muslim Law to pay such
reasonable and fair maintenance to her as he may
determine fit and proper, having regard to the needs of
the divorced woman, the standard of life enjoyed by her
during her marriage and the means of such relatives and
such maintenance shall be payable by such relatives in
the proportions in which they would inherit her property
and at such periods as he may specify in his order. If any
of the relatives do not have the necessary means to pay
the same, the Magistrate may order that the share of
such relatives in the maintenance ordered by him be paid
by such of the other relatives as may appear to the
Magistrate to have the means of paying the same in such
proportions as the Magistrate may think fit to order.
Where a divorced woman is unable to maintain herself
and she has no relatives as mentioned in sub-section (1)
or such relatives or any one of them has not enough
means to pay the maintenance ordered by the Magistrate
or the other relatives have not the means to pay the
shares of those relatives whose shares have been
ordered by the Magistrate to be paid by such other
relatives under the second proviso to sub-section (1), the
Magistrate may, by order direct the State Wakf Board,
functioning in the area in which the divorced woman
resides, to pay such maintenance as determined by him
as the case may be. It is, however, significant to note
that Section 4 of the Act refers only to payment of
maintenance and does not touch upon the provision to be
made by the husband referred to in Section 3(1)(a) of the

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Act.

25. Section 5 of the Act provides for option to be
governed by the provisions of Sections 125 to 128 CrPC.
It lays down that if, on the date of the first hearing of the
application under Section 3(2), a divorced woman and
her former husband declare, by affidavit or any other
declaration in writing in such form as may be prescribed,
either jointly or separately, that they would prefer to be
governed by the provisions of Sections 125 to 128 CrPC,
and file such affidavit or declaration in the court hearing
the application, the Magistrate shall dispose of such
application accordingly.

26. A reading of the Act will indicate that it codifies and
regulates the obligations due to a Muslim woman
divorcee by putting them outside the scope of Section
125 CrPC as the divorced woman has been defined as
Muslim woman who was married according to Muslim law
and has been divorced by or has obtained divorce from
her husband in accordance with the Muslim law. But the
Act does not apply to a Muslim woman whose marriage is
solemnized either under the Indian Special Marriage Act,
1954 or a Muslim woman whose marriage was dissolved
either under Indian Divorce Act, 1969 or the Indian
Special Marriage Act, 1954. The Act does not apply to the
deserted and separated Muslim wives. The maintenance
under the Act is to be paid by the husband for the
duration of the iddat period and this obligation does not
extend beyond the period of iddat. Once the relationship
with the husband has come to an end with the expiry of
the iddat period, the responsibility devolves upon the
relatives of the divorcee. The Act follows Muslim personal
law in determining which relatives are responsible under
which circumstances. If there are no relatives, or no
relatives are able to support the divorcee, then the Court
can order the State Wakf Boards to pay the maintenance.

27. Section 3(1) of the Act provides that a divorced
woman shall be entitled to have from her husband, a
reasonable and fair maintenance which is to be made
and paid to her within the iddat period. Under Section
3(2) the Muslim divorcee can file an application before a
Magistrate if the former husband has not paid to her a
reasonable and fair provision and maintenance or mahr
due to her or has not delivered the properties given to
her before or at the time of marriage by her relatives, or

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friends, or the husband or any of his relatives or friends.
Section 3(3) provides for procedure wherein the
Magistrate can pass an order directing the former
husband to pay such reasonable and fair provision and
maintenance to the divorced woman as he may think fit
and proper having regard to the needs of the divorced
woman, standard of life enjoyed by her during her
marriage and means of her former husband. The judicial
enforceability of the Muslim divorced womans right to
provision and maintenance under Section (3)(1)(a) of the
Act has been subjected to the condition of husband
having sufficient means which, strictly speaking, is
contrary to the principles of Muslim law as the liability to
pay maintenance during the iddat period is unconditional
and cannot be circumscribed by the financial means of
the husband. The purpose of the Act appears to be to
allow the Muslim husband to retain his freedom of
avoiding payment of maintenance to his erstwhile wife
after divorce and the period of iddat.

28. A careful reading of the provisions of the Act would
indicate that a divorced woman is entitled to a
reasonable and fair provision for maintenance. It was
stated that Parliament seems to intend that the divorced
woman gets sufficient means of livelihood, after the
divorce and, therefore, the word provision indicates that
something is provided in advance for meeting some
needs. In other words, at the time of divorce the Muslim
husband is required to contemplate the future needs and
make preparatory arrangements in advance for meeting
those needs. Reasonable and fair provision may include
provision for her residence, her food, her cloths, and
other articles. The expression within should be read as
during or for and this cannot be done because words
cannot be construed contrary to their meaning as the
word within would mean on or before, not beyond and,
therefore, it was held that the Act would mean that on or
before the expiration of the iddat period, the husband is
bound to make and pay a maintenance to the wife and if
he fails to do so then the wife is entitled to recover it by
filing an application before the Magistrate as provided in
Section 3(3) but no where the Parliament has provided
that reasonable and fair provision and maintenance is
limited only for the iddat period and not beyond it. It
would extend to the whole life of the divorced wife unless
she gets married for a second time.

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29. The important section in the Act is Section 3 which
provides that divorced woman is entitled to obtain from
her former husband maintenance, provision and mahr,
and to recover from his possession her wedding presents
and dowry and authorizes the magistrate to order
payment or restoration of these sums or properties. The
crux of the matter is that the divorced woman shall be
entitled to a reasonable and fair provision and
maintenance to be made and paid to her within the iddat
period by her former husband. The wordings of Section 3
of the Act appear to indicate that the husband has two
separate and distinct obligations : (1) to make a
reasonable and fair provision for his divorced wife; and
(2) to provide maintenance for her. The emphasis of this
section is not on the nature or duration of any such
provision or maintenance, but on the time by which an
arrangement for payment of provision and maintenance
should be concluded, namely, within the iddat period. If
the provisions are so read, the Act would exclude from
liability for post-iddat period maintenance to a man who
has already discharged his obligations of both reasonable
and fair provision and maintenance by paying these
amounts in a lump sum to his wife, in addition to having
paid his wifes mahr and restored her dowry as per
Section 3(1)(c) and 3(1)(d) of the Act. Precisely, the point
that arose for consideration in Shah Banos case was that
the husband has not made a reasonable and fair
provision for his divorced wife even if he had paid the
amount agreed as mahr half a century earlier and
provided iddat maintenance and he was, therefore,
ordered to pay a specified sum monthly to her under
Section 125 CrPC. This position was available to
Parliament on the date it enacted the law but even so,
the provisions enacted under the Act are a reasonable
and fair provision and maintenance to be made and paid
as provided under Section 3(1)(a) of the Act and these
expressions cover different things, firstly, by the use of
two different verbs to be made and paid to her within the
iddat period, it is clear that a fair and reasonable
provision is to be made while maintenance is to be paid;
secondly, Section 4 of the Act, which empowers the
magistrate to issue an order for payment of maintenance
to the divorced woman against various of her relatives,
contains no reference to provision. Obviously, the right to
have a fair and reasonable provision in her favour is a
right enforceable only against the womans former

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husband, and in addition to what he is obliged to pay as
maintenance; thirdly, the words of the Holy Quran, as
translated by Yusuf Ali of mata as maintenance though
may be incorrect and that other translations employed
the word provision, this Court in Shah Banos case
dismissed this aspect by holding that it is a distinction
without a difference. Indeed, whether mata was rendered
maintenance or provision, there could be no pretence
that the husband in Shah Banos case had provided
anything at all by way of mata to his divorced wife. The
contention put forth on behalf of the other side is that a
divorced Muslim woman who is entitled to mata is only a
single or one time transaction which does not mean
payment of maintenance continuously at all. This
contention, apart from supporting the view that the word
provision in Section 3(1)(a) of the Act incorporates mata
as a right of the divorced Muslim woman distinct from
and in addition to mahr and maintenance for the iddat
period, also enables a reasonable and fair provision and a
reasonable and fair provision as provided under Section
3(3) of the Act would be with reference to the needs of
the divorced woman, the means of the husband, and the
standard of life the woman enjoyed during the marriage
and there is no reason why such provision could not take
the form of the regular payment of alimony to the
divorced woman, though it may look ironical that the
enactment intended to reverse the decision in Shah
Banos case, actually codifies the very rationale contained
therein.

30. A comparison of these provisions with Section 125
CrPC will make it clear that requirements provided in
Section 125 and the purpose, object and scope thereof
being to prevent vagrancy by compelling those who can
do so to support those who are unable to support
themselves and who have a normal and legitimate claim
to support is satisfied. If that is so, the argument of the
petitioners that a different scheme being provided under
the Act which is equally or more beneficial on the
interpretation placed by us from the one provided under
the Code of Criminal Procedure deprive them of their
right loses its significance. The object and scope of
Section 125 CrPC is to prevent vagrancy by compelling
those who are under an obligation to support those who
are unable to support themselves and that object being
fulfilled, we find it difficult to accept the contention urged

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on behalf of the petitioners.

31. Even under the Act, the parties agreed that the
provisions of Section 125 CrPC would still be attracted
and even otherwise, the Magistrate has been conferred
with the power to make appropriate provision for
maintenance and, therefore, what could be earlier
granted by a Magistrate under Section 125 CrPC would
now be granted under the very Act itself. This being the
position, the Act cannot be held to be unconstitutional.

32. As on the date the Act came into force the law
applicable to Muslim divorced women is as declared by
this Court in Shah Banos case. In this case to find out the
personal law of Muslims with regard to divorced womens
rights, the starting point should be Shah Banos case and
not the original texts or any other material all the more
so when varying versions as to the authenticity of the
source are shown to exist. Hence, we have refrained from
referring to them in detail. That declaration was made
after considering the Holy Quran, and other
commentaries or other texts. When a Constitution Bench
of this Court analysed Suras 241-242 of Chapter II of the
Holy Quran and other relevant textual material, we do
not think, it is open for us to re-examine that position and
delve into a research to reach another conclusion. We
respectfully abide by what has been stated therein. All
that needs to be considered is whether in the Act specific
deviation has been made from the personal laws as
declared by this Court in Shah Banos case without
mutilating its underlying ratio. We have carefully
analysed the same and come to the conclusion that the
Act actually and in reality codifies what was stated in
Shah Banos case. The learned Solicitor General
contended that what has been stated in the Objects and
Reasons in Bill leading to the Act is a fact and that we
should presume to be correct. We have analysed the
facts and the law in Shah Banos case and proceeded to
find out the impact of the same on the Act. If the
language of the Act is as we have stated, the mere fact
that the Legislature took note of certain facts in enacting
the law will not be of much materiality.

33. In Shah Banos case this Court has clearly explained
as to the rationale behind Section 125 CrPC to make
provision for maintenance to be paid to a divorced
Muslim wife and this is clearly to avoid vagrancy or

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destitution on the part of a Muslim woman. The
contention put forth on behalf of the Muslims
organisations who are interveners before us is that under
the Act vagrancy or destitution is sought to be avoided
but not by punishing the erring husband, if at all, but by
providing for maintenance through others. If for any
reason the interpretation placed by us on the language of
Sections 3(1)(a) and 4 of the Act is not acceptable, we
will have to examine the effect of the provisions as they
stand, that is, a Muslim woman will not be entitled to
maintenance from her husband after the period of iddat
once the Talaq is pronounced and, if at all, thereafter
maintenance could only be recovered from the various
persons mentioned in Section 4 or from the Wakf Board.
This Court in Olga Tellis v. Bombay Municipal
Corporation, 1985(3) SCC 545, and Maneka Gandhi v.
Union of India, 1978 (1) SCC 248, held that the concept
of right to life and personal liberty guaranteed under
Article 21 of the Constitution would include the right to
live with dignity. Before the Act, a Muslim woman who
was divorced by her husband was granted a right to
maintenance from her husband under the provisions of
Section 125 CrPC until she may re-marry and such a
right, if deprived, would not be reasonable, just and fair.
Thus the provisions of the Act depriving the divoced
Muslim women of such a right to maintenance from her
husband and providing for her maintenance to be paid by
the former husband only for the period of iddat and
thereafter to make her run from pillar to post in search of
her relatives one after the other and ultimately to knock
at the doors of the Wakf Board does not appear to be
reasonable and fair substitute of the provisions of Section
125 CrPC. Such deprivation of the divorced Muslim
women of their right to maintenance from their former
husbands under the beneficial provisions of the Code of
Criminal Procedure which are otherwise available to all
other women in India cannot be stated to have been
effected by a reasonable, right, just and fair law and, if
these provisions are less beneficial than the provisions of
Chapter IX of the Code of Criminal Procedure, a divorced
Muslim woman has obviously been unreasonably
discriminated and got out of the protection of the
provisions of the general law as indicated under the Code
which are available to Hindu, Buddhist, Jain, Parsi or
Christian women or women belonging to any other
community. The provisions prima facie, therefore, appear

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to be violative of Article 14 of the Constitution mandating
equality and equal protection of law to all persons
otherwise similarly circumstanced and also violative of
Article 15 of the Constitution which prohibits any
discrimination on the ground of religion as the Act would
obviously apply to Muslim divorced women only and
solely on the ground of their belonging to the Muslim
religion. It is well settled that on a rule of construction a
given statute will become ultra vires or unconstitutional
and, therefore, void, whereas another construction which
is permissible, the statute remains effective and
operative the court will prefer the latter on the ground
that Legislature does not intend to enact unconstitutional
laws. We think, the latter interpretation should be
accepted and, therefore, the interpretation placed by us
results in upholding the validity of the Act. It is well
settled that when by appropriate reading of an
enactment the validity of the Act can be upheld, such
interpretation is accepted by courts and not the other
way.

34. The learned counsel appearing for the Muslim
organisations contended after referring to various
passages from the text books to which we have adverted
to earlier to state that the law is very clear that a
divorced Muslim woman is entitled to maintenance only
upto the stage of iddat and not thereafter. What is to be
provided by way of Mata is only a benevolent provision to
be made in case of divorced Muslim woman who is
unable to maintain herself and that too by way of charity
or kindness on the part of her former husband and not as
a result of her right flowing to the divorced wife. The
effect of various interpretations placed on Suras 241 and
242 of Chapter 2 of Holy Quran has been referred to in
Shah Banos case. Shah Banos case clearly enunciated
what the present law would be. It made a distinction
between the provisions to be made and the maintenance
to be paid. It was noticed that the maintenance is
payable only upto the stage of iddat and this provision is
applicable in case of a normal circumstances, while in
case of a divorced Muslim woman who is unable to
maintain herself, she is entitled to get Mata. That is the
basis on which the Bench of Five Judges of this Court
interpreted the various texts and held so. If that is the
legal position, we do not think, we can state that any
other position is possible nor are we to start on a clean

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slate after having forgotten the historical background of
the enactment. The enactment though purports to
overcome the view expressed in Shah Banos case in
relation to a divorced Muslim woman getting something
by way of maintenance in the nature of Mata is indeed
the statutorily recognised by making provision under the
Act for the purpose of the maintenance but also for
provision. When these two expressions have been used
by the enactment, which obviously means that the
Legislature did not intend to obliterate the meaning
attributed to these two expressions by this Court in Shah
Banos case. Therefore, we are of the view that the
contentions advanced on behalf of the parties to the
contrary cannot be sustained.

35. In Arab Ahemadhia Abdulla and etc vs. Arab Bail
Mohmuna Saiyadbhai Ors. etc., AIR 1988 (Guj.) 141; Ali
vs. Sufaira, (1988) 3 Crimes 147; K. Kunhashed Hazi v.
Amena, 1995 Crl.L.J. 3371; K. Zunaideen v. Ameena
Begum, (1998] II DMC 468; Karim Abdul Shaik v. Shenaz
Karim Shaik, 2000 Cr.L.J. 3560 and Jaitunbi Mubarak
Shaikh v. Mubarak Fakruddin Shaikh Anr., 1999 (3)
Mh.L.J. 694, while interpreting the provision of Sections
3(1)(a) and 4 of the Act, it is held that a divorced Muslim
woman is entitled to a fair and reasonable provision for
her future being made by her former husband which
must include maintenance for future extending beyond
the iddat period. It was held that the liability of the
former husband to make a reasonable and fair provision
under Section 3(1)(a) of the Act is not restricted only for
the period of iddat but that divorced Muslim woman is
entitled to a reasonable and fair provision for her future
being made by her former husband and also to
maintenance being paid to her for the iddat period. A lot
of emphasis was laid on the words made and paid and
were construed to mean not only to make provision for
the iddat period but also to make a reasonable and fair
provision for her future. A Full Bench of the Punjab and
Haryana High Court in Kaka v. Hassan Bano Anr., II
(1998) DMC 85 (FB), has taken the view that under
Section 3(1)(a) of the Act a divorced Muslim woman can
claim maintenance which is not restricted to iddat period.
To the contrary it has been held that it is not open to the
wife to claim fair and reasonable provision for the future
in addition to what she had already received at the time
of her divorce; that the liability of the husband is limited

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for the period of iddat and thereafter if she is unable to
maintain herself, she has to approach her relative or
Wakf Board, by majority decision in Umar Khan
Bahamami v. Fathimnurisa, 1990 Cr.L.J. 1364; Abdul
Rashid v. Sultana Begum, 1992 Cr.L.J. 76; Abdul Haq v.
Yasima Talat; 1998 Cr.L.J. 3433; Md. Marahim v. Raiza
Begum, 1993 (1) DMC 60. Thus preponderance of judicial
opinion is in favour of what we have concluded in the
interpretation of Section 3 of the Act. The decisions of the
High Courts referred to herein that are contrary to our
decision stand overruled. ”

44. Thus, the Supreme Court, on a creative and meaningful
interpretation of the MWPRDA, 1986, upheld its
constitutionality. It held that a Muslim husband is liable to
make reasonable and fair provision for the future of his
divorced wife extending beyond the Iddat period. The Supreme
Court based this interpretation on the word ” provision” in the
Act, 1986 indicating that “at the time of divorce, the Muslim
husband is required to contemplate the future needs (of his
wife) and make preparatory arrangements in advance for
meeting those needs”. This case established, for the first time,
that a Muslim husband’s liability to provide maintenance to
his divorced wife extends beyond the Iddat period, and he
must realize his obligations within the Iddat period thereby
striking a balance between the Muslim personal law and the
Criminal Procedure Code, 1973.

45. A Division Bench of the Allahbad High Court in the case of
Mohd Sayeed vs. Rehana Begum, 1996 (27) All. L.R., 597
was called upon to consider the question whether an
application contemplated under Section 3 of the Act, 1986
could be termed as proceedings in terms of the explanations
provided to Section 7 of the Act, 1984. The second question

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which arose before the Division Bench for consideration was
whether an application to be moved under Section 3 of the Act,
1986 before a Magistrate could be brought within the purview
of Section 7(1)(a) of the Act, 1984, i.e, the jurisdiction
exercisable by any District Court or by any Subordinate Court
under any law for the time being in force in respect of the
suits and the proceedings of the nature referred to in the
explanations. The Division Bench proceeded to answer the two
questions as under;

“The words ‘proceedings’, ‘District Court’ or ‘any
Subordinate Civil Court’ are not defined under the Family
Courts Act.

Section 2(c) of the Act defines ‘Magistrate’ which reads
as under :

” Magistrate’ means a Magistrate of the First Class
exercising jurisdiction under the Code of Criminal
Procedure, 1973 (2 of 1974) in the area where the
divorced woman resides.”

General Clauses Act also does not define the words
‘proceedings’, ‘District Court’ or’ Civil Court’. The word
‘proceedings’ originates from the word’ proceed’. The
word ‘proceed’ is defined in the New Laxicon Websters
Dictionary (Delux Encyclopedic Edition). The definition of
the words ‘proceed’ inter alia means” to take legal
measures”. Word ‘proceedings’ have also been defined in
the said Dictionary “as legal measures”. Moving an
application under Section 3 of the Act is definitely a legal
action for the redress of the divorced wife in accordance
with the provisions of the Act. The proceedings as
contemplated by explanation of Section 7 of the Family
Courts Act thus brings in within its purview an application
under Section 3 of the ‘Act’.

15. The Division Bench decision referred to and relied
upon by the learned Counsel for the appellants does not
give any reasoning whatsoever for taking a view that an
application under Section 3 of the Act cannot be brought
in within the meaning of proceedings referred to in
explanation of Section 7 of the Family Courts Act.
The other question requires for consideration is whether

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an application before the Magistrate contemplated by
Section 3 of the Act can be held to be an application
under District Court or Civil Court to bring it within the
purview of Section 7 of the Family Courts Act.
This needs a reference to the defiinition of ‘Magistrate’
referred to in Section 2(c) of the Act. The definition
provides that the ‘Magistrate’ means a Magistrate of the
First class exercising jurisdiction under the Code of
Criminal procedure, 1973. Since initially an application
under Section 125 of Cr.P.C. was moved by the
respondent’s wife in the aforesaid appeal and the Court
was seized of the jurisdiction of the matter, during the
pendency of the proceedings the appellant decided to
divorce his wife in the aforesaid circumstance the Family
Court which was seized of the jurisdiction of 125 Cr.P.C,
passed order under Section 3 of the Act. ”

46. While answering the question whether the Court has the
jurisdiction to pass orders under the Muslim Women
(Protection of Rights on Divorce) Act, 1986, the Bench held as
under;

“31. Under Section 3 of the Act, the petition is to be
made claiming maintenance for the period of Iddat after
divorce, claiming maintenance for the child born from the
former husband and claiming Mahr and dower or a sum
equivalent thereto which are admittedly the properties
between the parties to the marriage. All the aforesaid
claims, which a divorced wife under the Act is supposed
to make before a Magistrate are squarely covered by the
Explanations of Section 7 of the Family Courts Act.

33. Section 20 of the Family Courts Act gives an over-
riding effect to the provisions of the Act over all other
enactments. The Family Courts Act has in its
comprehension all community including the Muslims. All
disputes between the Muslim community within the
purview of the Family Courts Act are settled by the
Family Courts. It cannot be doubted for a minute that the
dispute contemplated by Section 3 of the Act is within the
purview and four corners of the Family Courts Act, as the

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dispute under Section 3 of the Act also relates to
matrimonial relations between the parties and as a
consequence of this matrimonial relations having been
broken, entitlement of divorced wife after breaking of the
matrimonial relations with her husband begins.

46. The entire purpose of the Act is to provide speedy
and expeditious remedy to the destitute lady. The said
object of the Act will be defeated if the appellants are
permitted to agitate the issue jurisdiction at the appellate
stage in the background of the specific provisions of the
Act that the application of the destitute lady should be
decided within one month from the date of the
application. This speedy remedy cannot be permitted to
be defeated on the basis of the ground which was never
agitated before the Court below. Taking into account the
entire circumstances and also taking into account that in
case the appellants are permitted to Magistrate the issue
of jurisdiction for the first time in the present appeal, the
cause of justice will be defeated and considering the
entire provision of Family Courts Act we are of the view
that the Family Court did not lack inherent jurisdiction to
deride an application under Section 3(2) of the Act. ”

47. We may also look into the Full Bench decision of the
Bombay High Court in the case of Karim Abdul Rehman Shaikh
(supra). We quote the relevant observations;

“60. The Muslim Women Act was published in the gazette
of India on 19th May, 1986. This Act, the provisions of
which we have already quoted extensively is meant to
protect the rights of Muslim women who have been
divorced by, or have obtained divorce from their
husbands, and to provide for matters connected
therewith or incidental thereto. This Act is a later
enactment Obviously, therefore, the provisions of the
Family Court’s Act, 1984 will not have overriding effect
on this Act because as per section 20 of the Family
Court’s Act it can have overriding effect only in respect of
anything inconsistent therewith contained in any other
law for the time being in force. Admittedly, the Muslim
Women Act was not in force when the Family Court’s Act,

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1984 was enacted. In section 2(c) of the Muslim Women
Act, Magistrate is defined to mean a Magistrate of the
First Class exercising jurisdiction under the Code of
Criminal Procedure, 1973 in the area where the divorced
women resides. Application under section 3 for
reasonable and fair provision and maintenance has to be
made before a Magistrate. Under section 4, a divorced
women who has not remarried and who is not able to
maintain herself after the iddat period has to make an
application before a Magistrate to claim a fair and
reasonable provision from the persons specified therein.

As per section 2(c) of the Muslim Women Act, such
Magistrate has to be a Magistrate of the First Class
exercising jurisdiction under the Code. Section 7(2) of the
Family Court’s Act says that the Family Court shall also
have a jurisdiction exercisable by the Magistrate of First
Class under Chapter IX of the Code, but in view of our
conclusion that a divorced Muslim women cannot apply
for maintenance under Chapter IX of the Code except by
agreement as provided under section 5, the question of
Muslim women making an application under Chapter IX of
the Code and preferring it before a Family Court does not
arise at all. Section 7(2)(b) says that a Family Court shall
have such other powers as may be conferred on it by any
other enactment.

61. It is important to note that there is no enactment
containing an express provision that the Family Court
shall have jurisdiction to deal with applications made by a
divorced Muslim women under sections 3 and 4 of the
Muslim Women Act. On the contrary, the scheme of the
Muslim Women Act shows that such application can be
made only to the Magistrate of First Class exercising
jurisdiction under the Code. The Family Court’s Act is a
prior enactment. Muslim Women Act does not even refer
to the Family Court’s Act. If it was the intention of the
legislature to see that a Muslim women can file
application before a Family Court an express provision to
that effect would have been found in the Muslim Women
Act. On the contrary, under section 5 of the Muslim
Women Act, a divorced women and her former husband
can declare that they prefer to be governed by sections
125 to 128 of the Code and then the Magistrate has to
dispose of the application accordingly. Otherwise, the
Magistrate has to deal with it as per the provisions of the
Muslim Women Act. There is no provision under which a

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Muslim women can prefer to go to a Family Court by
making a joint declaration with her husband. Section 7
says that application by a divorced women under section
125 or under section 127 of the Code pending before a
Magistrate on the commencement of the Muslim Women
Act shall notwithstanding anything contained in that
Code and subject to the provisions of section 5 of the
Muslim Women Act shall be disposed of by such
Magistrate in accordance with the provisions of the
Muslim Women Act. This makes the legal provision very
clear. It is only a Magistrate of the First Class exercising
jurisdiction under the Code who can dispose of even the
pending applications and that too in accordance with the
provisions of the Muslim Women Act. Therefore, there is
nothing in the provisions of the Muslim Women Act to
suggest that the Family Court has jurisdiction to entertain
applications under sections 3 and 4 of the Muslim Women
Act.

62. Similar view has been taken by Division Bench of
this Court in Noor Jamaal’s case (supra) and we
respectfully concur with the said view. We do not concur
with decision of the Division Bench of this Court in
Allabuksh’s case (supra) which holds that, where a Family
Court has been established, the power and jurisdiction of
the Family Court to entertain an application by a divorced
Muslim wife is not taken away expressly or by necessary
implication by the Muslim Women Act and the remedy
under the Muslim Women Act is an additional remedy. In
our opinion, the fact that the Muslim Women Act does not
refer to a Family Court or does not say that application
under sections 3 and 4 can be filed before the Family
Court is very material. If the jurisdiction of the Family
Court was sought to be protected, there would have been
an express provision making it clear that the Family
Court has jurisdiction to entertain applications of
divorced Muslim women under sections 3 and 4 of the
Muslim Women Act. We therefore hold that after coming
into force of the Muslim Women Act, a Muslim women
can apply under sections 3 and 4 of the said Act only to
the First Class Magistrate having jurisdiction under the
Code. The Family Court cannot deal with such
applications. ”

48. The aforesaid Full Bench decision of the Bombay High

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Court is not a good law in view of the aforesaid decisions of the
Supreme Court in the case of Shabana Bano vs. Imran
Khan, AIR 2010 SC 305 and Danial Latifi (supra).

49. In Shabana Bano (supra), the question that fell for the
consideration of the Supreme Court was whether a Muslim
divorced wife would be entitled to receive the amount of
maintenance from her divorced husband under Section 125 of
the Cr.P.C, and if yes, then through which Forum. The
Supreme Court answered the aforesaid question as under;

” 14. Section 4 of Muslim Act reads as under:

“4. Order for payment of maintenance: -(1)
Notwithstanding anything contained in the foregoing
provisions of this Act or in any other law for the time
being in force, where a Magistrate is satisfied that a
divorced woman has not re-married and is not able to
maintain herself after the iddat period, he may make an
order directing such of her relatives as would be entitled
to inherit her property on her death according to Muslim
law to pay such reasonable and fair maintenance to her
as he may determine fit and proper, having regard to the
needs of the divorced woman, the standard of life
enjoyed by her during her marriage and the means of
such relatives and such maintenance shall be payable by
such relatives in the proportions in which they would
inherit her property and at such periods as he may
specify in his order:

Provided that where such divorced woman has children,
the Magistrate shall order only such children to pay
maintenance to her, and in the event of any such
children being unable to pay such maintenance, the
Magistrate shall order the parents of such divorced
woman to pay maintenance to her:

Provided further that if any of the parents is unable to
pay his or her share of the maintenance ordered by the
Magistrate on the ground of his or her not having the
means to pay the same, the Magistrate may, on proof of

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such inability being furnished to him, order that the share
of such relatives in the maintenance ordered by him be
paid by such of the other relatives as may appear to the
Magistrate to have the means of paying the same in such
proportions as the Magistrate may think fit to order.

(2) Where a divorced woman is unable to maintain
herself and she has no relatives as mentioned in sub-
section (1) or such relatives or any one of them have not
enough means to pay the maintenance ordered by the
Magistrate or the other relatives have not the means to
pay the shares of those relatives whose shares have
been ordered by the Magistrate to be paid by such other
relatives under the second proviso to sub-section (1), the
Magistrate may, by order, direct the State Wakf Board
established under Section 9 of the Wakf Act, 1954 (29 of
1954), or under any other law for the time being in force
in a State, functioning in the area in which the woman
resides, to pay such maintenance as determined by him
under sub-section (1) or, as the case may be, to pay the
shares of such of the relatives who are unable to pay, at
such periods as he may specify in his order.”

15. Section 5 thereof deals with the option to be
governed by the provisions of Section 125 to 128 of the
Cr.P.C. It appears that parties had not given any joint or
separate application for being considered by the Court.
Section 7 thereof deals with transitional provisions.

16. Family Act, was enacted w.e.f. 14th September, 1984
with a view to promote conciliation in, and secure speedy
settlement of, disputes relating to marriage and family
affairs and for matters connected therewith.

17. The purpose of enactment was essentially to set up
family courts for the settlement of family disputes,
emphasizing on conciliation and achieving socially
desirable results and adherence to rigid rules of
procedure and evidence should be eliminated. In other
words, the purpose was for early settlement of family
disputes.

18. The Act, inter alia, seeks to exclusively provide within
jurisdiction of the family courts the matters relating to
maintenance, including proceedings under Chapter IX of
the Cr.P.C.

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19. Section 7 appearing in Chapter III of the Family Act
deals with Jurisdiction. Relevant provisions thereof read
as under:

“7. Jurisdiction-(1) Subject to the other provisions of this
Act, a Family Court shall- (a) have and exercise all
the jurisdiction exercisable by any district Court or
any subordinate civil Court under any law for the time
being in force in respect of suits and proceedings of the
nature referred to in the Explanation; and

(b) be deemed, for the purposes of exercising such
jurisdiction under such law, to be a district Court or, as
the case may be, such subordinate civil Court for the
area to which the jurisdiction of the Family Court
extends.

Explanation.- The suits and proceedings referred to in
this sub- section are suits and proceedings of the
following nature, namely:-

(a) …. …. ….

(b) …. …. ….

(c) …. …. ….

(d) …. …. ….

(e) …. …. ….

(f) a suit or proceeding for maintenance;

` (g) …. …. ….”

20. Section 20 of the Family Act appearing in Chapter VI
deals with overriding effect of the provisions of the Act.
The said section reads as under :

“20. Act to have overriding effect – The provisions of this
Act shall have effect notwithstanding anything
inconsistent therewith contained in any other law for the
time being in force or in any instrument having effect by
virtue of any law other than this Act.”

21. Bare perusal of Section 20 of the Family Act makes it
crystal clear that the provisions of this Act shall have
overriding effect on all other enactments in force dealing
with this issue.

22. Thus, from the above mentioned provisions it is quite

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discernible that a Family Court established under the
Family Act shall exclusively have jurisdiction to
adjudicate upon the applications filed under Section 125
of Cr.P.C.

23. In the light of the aforesaid contentions and in view of
the pronouncement of judgments detailing the said issue,
learned counsel for the appellant submits that matter
stands finally settled but learned Single Judge wholly
misconstrued the various provisions of the different Acts
as mentioned hereinabove, thus, committed a grave
error in rejecting the appellant’s prayer.

24. In our opinion, the point stands settled by judgment
of this Court reported in (2001) 7 SCC 740 titled Danial
Latifi Anr. Vs. Union of India pronounced by a
Constitution Bench of this Court. Paras 30, 31 and 32
thereof fully establish the said right of the appellant. The
said paragraphs are reproduced hereinunder :

“30. A comparison of these provisions with Section 125
CrPC will make it clear that requirements provided in
Section 125 and the purpose, object and scope thereof
being to prevent vagrancy by compelling those who can
do so to support those who are unable to support
themselves and who have a normal and legitimate claim
to support are satisfied. If that is so, the argument of the
petitioners that a different scheme being provided under
the Act which is equally or more beneficial on the
interpretation placed by us from the one provided under
the Code of Criminal Procedure deprive them of their
right, loses its significance. The object and scope of
Section 125 CrPC is to prevent vagrancy by compelling
those who are under an obligation to support those who
are unable to support themselves and that object being
fulfilled, we find it difficult to accept the contention urged
on behalf of the petitioners.

31. Even under the Act, the parties agreed that the
provisions of Section 125 CrPC would still be attracted
and even otherwise, the Magistrate has been conferred
with the power to make appropriate provision for
maintenance and, therefore, what could be earlier
granted by a Magistrate under Section 125 CrPC would
now be granted under the very Act itself. This being the
position, the Act cannot be held to be unconstitutional.

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32. As on the date the Act came into force the law
applicable to Muslim divorced women is as declared by
this Court in Shah Bano’s case [(1985) 2 SCC 556 Mohd.
Ahmed Khan vs. Shah Bano Begum Ors.]. In this case
to find out the personal law of Muslims with regard to
divorced women’s rights, the starting point should be
Shah Bano’s case and not the original texts or any other
material – all the more so when varying versions as to the
authenticity of the source are shown to exist. Hence, we
have refrained from referring to them in detail. That
declaration was made after considering the Holy Quran,
and other commentaries or other texts. When a
Constitution Bench of this Court analysed Suras 241-242
of Chapter II of the Holy Quran and other relevant textual
material, we do not think, it is open for us to re-examine
that position and delve into a research to reach another
conclusion. We respectfully abide by what has been
stated therein. All that needs to be considered is whether
in the Act specific deviation has been made from the
personal laws as declared by this Court in Shah Bano’s
case without mutilating its underlying ratio. We have
carefully analysed the same and come to the conclusion
that the Act actually and in reality codifies what was
stated in Shah Bano’s case. The learned Solicitor General
contended that what has been stated in the Objects and
Reasons in Bill leading to the Act is a fact and that we
should presume to be correct. We have analysed the
facts and the law in Shah Bano’s case and proceeded to
find out the impact of the same on the Act. If the
language of the Act is as we have stated, the mere fact
that the Legislature took note of certain facts in enacting
the law will not be of much materiality.”

25. Judgment of this Court reported in (2007) 6 SCC 785
titled Iqbal Bano Vs. State of U.P. Anr. whereby the
provisions contained in Section 125 of the Cr.P.C. have
been aptly considered and the relevant portion of the
order passed in Iqbal Bano’s case reads as under:

“10. Proceedings under Section 125 Cr.P.C. are civil in
nature. Even if the Court noticed that there was a
divorced woman in the case in question, it was open to it
to treat it as a petition under the Act considering the
beneficial nature of the legislation. Proceedings under
Section 125 Cr.P.C. and claims made under the Act are

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tried by the same court. In Vijay Kumar Prasad Vs State
of Bihar (2004) 5 SCC 196 it was held that proceedings
under Section 125 Cr.P.C. are civil in nature. It was noted
as follows: (SCC p.200, Para 14).

14. The basic distinction between Section 488 of the old
Code and Section 126 of the Code is that Section 126 has
essentially enlarged the venue of proceedings for
maintenance so as to move the place where the wife may
be residing on the date of application. The change was
thought necessary because of certain observations by
the Law Commission, taking note of the fact that often
deserted wives are compelled to live with their relatives
far away from the place where the husband and wife last
resided together. As noted by this Court in several cases,
proceedings under Section 125 of the Code are of civil
nature. Unlike clauses (b) and (c) of Section 126 (1) an
application by the father or the mother claiming
maintenance has to be filed where the person from
whom maintenance is claimed lives.”

26. In the light of the findings already recorded in earlier
paras, it is not necessary for us to go into the merits. The
point stands well settled which we would like to reiterate.

27. The appellant’s petition under Section 125 of the
Cr.P.C. would be maintainable before the Family Court as
long as appellant does not remarry. The amount of
maintenance to be awarded under Section 125 of the
Cr.P.C. cannot be restricted for the iddat period only.

28. Learned Single Judge appeared to be little confused
with regard to different provisions of Muslim Act, Family
Act and Cr.P.C. and thus was wholly unjustified in
rejecting the appellant’s Revision.

29. Cumulative reading of the relevant portions of
judgments of this Court in Danial Latifi (supra) and Iqbal
Bano (supra) would make it crystal clear that even a
divorced Muslim woman would be entitled to claim
maintenance from her divorced husband, as long as she
does not remarry. This being a beneficial piece of
legislation, the benefit thereof must accrue to the
divorced Muslim women.

30. In the light of the aforesaid discussion, the

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impugned orders are hereby set aside and quashed. It is
held that even if a Muslim woman has been divorced, she
would be entitled to claim maintenance from her
husband under Section 125 of the Cr.P.C. after the expiry
of period of iddat also, as long as she does not remarry. ”

50. Thus, in the aforesaid decision of the Supreme Court, it
has been held that petition under Section 125 of the Cr.P.C
would be maintainable before the Family Court as long as the
wife does not remarry. The amount of maintenance to be
awarded under Section 125 of the Cr.P.C cannot be restricted
for the Iddat period only.

51. The main plank of the submission canvassed on behalf of
the appellant is that there is no provision in the Dissolution of
Muslim Marriage Act, 1939 for maintenance or permanent
alimony. Although the suit for dissolution of marriage under
the Act, 1939 would be maintainable before the Family Court
under the Act, 1984, yet the jurisdiction of the Family Court
would not travel beyond granting a decree of divorce. In other
words, the argument is that the Family Court has no
jurisdiction to pass any order with respect to maintenance or
permanent alimony once the suit is allowed and the marriage
is dissolved at the instance of the wife.

52. A perusal of the provisions of the Muslim Women
(Protection of Rights on Divorce) Act, 1986 (hereinafter
referred to as “the Muslim Women Act”) will leave no manner
of doubt that the Act shall operate only when a “divorced
woman”, as defined in that Act, applies for maintenance
against the former husband. The Muslim Women Act is “to
protect the rights of Muslim women who have been divorced

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by or have obtained divorce from their husbands and to
provide for matters connected therewith or incidental thereto”.
The title therefore makes it abundantly clear that the Muslim
Women Act professes to deal with Muslim divorced women and
their rights against their former husbands.

53. Where a Family Court has been established, the power
and the jurisdiction of the Family Court under section 7(2) of
the Family Courts Act, 1984 to entertain an application for
maintenance, even by a divorced Muslim wife, under Chapter
IX of the Code of Criminal Procedure has not been taken away,
either expressly or even by implication by the Muslim Women
Act of 1986. And once such an application is made to a Family
Court under section 7(2) of the Family Courts Act, and not to a
Magistrate, the same has got to be disposed of by the Family
Court in accordance with the provisions of Chapter IX of the
Code of Criminal Procedure, and the Muslim Women Act of
1986, including its Section 5, would have no manner of
application. When the Muslim Women Act was enacted in
1986, it was obviously known to the Parliament that wherever
a Family Court is established the Magistrates are divested of
their jurisdiction in respect of the applications under Chapter IX
of the Code of Criminal Procedure under the provisions of
Section 8(b) of the Family Courts Act enacted in 1984 and such
jurisdictions are thereafter vested in the Family Courts under
section 7(2) of the Act. If, with these provisions staring at the
face, the Muslim Women Act of 1986 does not, even remotely,
refer to a proceeding under Chapter IX of the Code of Criminal
Procedure in or before a Family Court, the conclusion is
irresistible that such a proceeding under Chapter IX of the

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Code is still available to a Muslim divorced woman in and
before a Family Court, while the remedy under the Muslim
Women Act, of 1986 is an additional remedy.

54. As we read the relevant provisions of Chapter IX of the
Code of Criminal Procedure, of the Family Courts Act, 1984 and
the Muslim Women Act, 1986 the position appears to us to be
as hereunder. A muslim divorced woman may apply for
maintenance before a Magistrate under section 5 of the Muslim
Women Act payable to her only during the period of Iddat. She
may, thereafter, if still unable to maintain herself, apply for
maintenance for the post-Iddat period also, before a
Magistrate, where no Family Court has been constituted, under
Chapter IX of the Code of Criminal Procedure and such
application shall be governed and disposed of in accordance
with the provisions of Chapter IX only if both the divorced
woman and her former husband declare under section 5 of the
Muslim Women Act and choose to be so governed. A divorced
woman in need for maintenance for the post-Iddat period, may
also, if she so chooses, apply to a Magistrate under section 4 of
the Muslim Women Act for maintenance to be paid to her from
such of her relatives as would be entitled to inherit her
property on her death, or, that failing, by the Wakf Board. But
where a Family Court has been constituted, such a divorced
woman, intending to apply for maintenance under Chapter IX
of the Code of Criminal Procedure, shall have to apply for
maintenance under that Chapter in and before the Family
Court and the Family Court shall have to dispose of such
application in accordance with the provisions of that Chapter
IX, notwithstanding anything in the Muslim Women Act of
1986. For the post-Iddat period maintenance, therefore, the

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divorced Muslim woman has clear option either to move a
Magistrate under section 4 of the Muslim Women Act or to
apply to the Family Court, if there is one, for maintenance
under Chapter IX of the Code of Criminal Procedure.

55. The right of maintenance and right in the matrimonial
property are the consequences of the marriage or its
dissolution. Those reliefs are incidental to the main relief of
‘dissolution of marriage’ and therefore, these reliefs are very
much an integral part of the decree of ‘dissolution of marriage’.
Hence, they are required to be considered in the same
proceeding, even if at times such reliefs are not asked for also.
It is well recognized that the award of maintenance is the fall
out of the decree of ‘dissolution of marriage’, hence even if at
times, the Respondent has not asked for the maintenance, she
is awarded that maintenance for herself and her children while
passing the decree for ‘dissolution of marriage’.

56. The Courts, civil or criminal, are constituted for the
purpose of administering justice in accordance with law. The
Codes of procedure, civil and criminal, have been enacted to
regulate the procedural aspects and to ensure that the
enquiries and trial are held in accordance with the principles
of fair play. The Provisions of the Codes are designed to further
the ends of justice and not to frustrate the ends of justice. The
legislature has tried to lay down elaborate rules in respect of
all the matters specifically mentioned in the Codes. Yet it has
to be appreciated that it is not humanly possible for any
legislature to visualise, anticipate and provide for all matters
and contingencies that may arise in the courts for all times.

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The ever-changing needs and situations may require judicial
determination: it cannot be that the courts are powerless to
act in the absence of specific provisions in the Codes. The
Courts have since olden times evolved the theory of inherent,
implied or ancillary powers and applied the same to regulate
their proper and effective functioning and in the discharge of
their duties to get over the technicalities and to secure the
ends of justice. The challenge of administering justice is often
met by invocation of inherent powers resting on never
changing principles of reason and fair play.

57. It is a well known rule of statutory construction that a
tribunal or body should be considered to be endowed with such
ancillary or incidental powers as are necessary to discharge its
functions for the purpose of doing justice between the parties
unless there is any indication to the contrary in the statute.
See Grindlays Bank Ltd. v. Central Govt. Ind. Tribunal
(1980 Supp SCC 420 : AIR 1981 SC 606). An express grant of
statutory power carries with it by necessary implication the
authority to use all reasonable means to make such grant
effective. (See Sutherland’s Statutory Construction, Third
edition, articles 5401 and 5402). Where an Act confers
jurisdiction, it impliedly also grants the power of doing all such
acts or employing such means, as are essentially necessary to
its’ execution. See Maxwell on Interpretation of Statutes,
eleventh edition at page 350. This passage is quoted with
approval in Income Tax Officer, Cannanore. v. M. K.
Mohammed Kunhi, (1969) 71 ITR 815 and Dharmadas v.
S.T.A.T (1962 KLT 505 (FB)). Every court is deemed to
possess such inherent power, in the absence of any provision

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either prohibiting or providing for the exercise of such power,
in respect of any matter as is really essential for its effective
and smooth functioning in accordance with law. Such power is
inherent in its very constitution. This power, naturally, has to
be exercised sparingly and with due care and caution and only
in appropriate cases either to give effect to orders of court or
to prevent abuse of process of court or to secure the ends of
justice; it has to be exercised judiciously and not arbitrarily or
capriciously. The exercise must be based on sound general
principles and not in conflict with them or with the intention of
the legislature as indicated in the statutory provisions.

58. It was also sought to be argued on behalf of the appellant
that in view of Section 4 of the Act, 1986, the former husband
has no liability to make any provision for the Post-Iddat period.
Section 4 reads thus;

“4. Order for payment of maintenance
(1) Notwithstanding anything contained in the foregoing
provisions of this Act or in any other law for the time
being in force, where a Magistrate is satisfied that a
divorced woman has not re-married and is not able to
maintain herself after the Iddat period, he may make an
order directing such of her relatives as would be entitled
to inherit her property on her death according to Muslim
law to pay such reasonable and fair maintenance to her
as he may determine fit and proper, having regard to the
needs of the divorced woman, the standard of life
enjoyed by her during her marriage and the means of
such relatives and such maintenance shall be payable by
such relatives in the proportions in which they would
inherit her property and as such periods as he may
specify in his order:

Provided that where such divorced woman has children,
the Magistrate shall order only such children to pay
maintenance to her, and in the event of any such
children being unable to pay such maintenance, the

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Magistrate shall order the parents of such divorced
women to pay maintenance to her.

Provided further that if any of the parents is unable to
pay his or her share of the maintenance ordered by the
Magistrate on the ground of his or her not having the
means to pay the same, the Magistrate may, on proof of
such liability being furnished to him, order that the share
of such relatives in the maintenance ordered by him be
paid by such of the other relatives as may appear to the
Magistrate to have the means of paying the same in such
proportions as the Magistrate may think fit to order.
(2) Where a divorced woman is unable to maintain
herself and she has no relatives as mentioned in sub-
section (1) or such relatives or any one of them have not
enough means to pay the maintenance ordered by the
Magistrate or the other relatives have not the means to
pay the shares of those relatives whose shares have
been ordered by the Magistrate to be paid by such other
relatives under the proviso to sub-section (1) tne
Magistrate may, by order, direct the State Wakf Board
established under S. 9 of the Wakf Act, 1954 (Act 29
of 1954) or under any other law for the time being in
force in a State, functioning in the area in which the
woman resides, to pay such maintenance as determined
by him under sub-section (1) or, as the case may be, to
pay the shares of such of the relatives who are unable to
pay, at such periods as he may specify in his order.” (See
Aliyar vs. Pathu, 1988 (2) KLT 446)

59. The point to be stressed is that the relief of maintenance
whether to the wife or the children is incidental to the relief of
‘dissolution of marriage’. Merely because ‘The Dissolution of
Muslim Marriages Act, 1939’, does not mention that the Court
is also having the jurisdiction or power to grant such relief, it
cannot be said that the Court is not having the jurisdiction to
grant it, if it is incidental, claimed and the Court finds it
necessary to grant the same. Moreover, the right of
maintenance given to wife and the minor children under the
provisions of the Muslim Women (Protection of Rights on

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Divorce) Act, 1986, is in addition to the right, which the minor
children are having under Muslim Law to get maintenance from
the father. The law expects that the parties should not be
driven to approach the different forums but in one forum itself
they should be granted whatever reliefs to which they are
entitled.

60. A Division Bench of the Bombay High Court in the case of
Shabbir Ahmed Sheikh vs. Shaikilabanu has held as
follows;

“The preamble of the Dissolution of Muslim Marriages
Act, 1939, shows that the Act is of a consolidating and
declaratory character and that it was intended to
consolidate and clarify the provisions of Muslim Law
relating to suits for dissolution of marriages by women
married under Muslim Law and to remove doubts as to
the effect of the renunciation of Islam by a married
Muslim woman on her marriage tie. It was never intended
to abrogate the general Law applicable to
Mohammedans. Therefore, this Act is not the sole
statute. They are having the rights under other statutes
also and those rights can be very well exercised in the
Civil Court. Therefore, if any decree is passed by the Civil
Court granting those rights, it cannot be said that the
Civil Court has acted beyond its jurisdiction.” (emphasis
supplied).”

61. The Supreme Court in the case of K.A. Abdul Jaleel V/s.
Shahida, (2003) 4 SCC 166 was concerned with the provisions
of Section 7 of the Family Courts Act, 1984, as to, whether the
Family Court had the jurisdiction to adjudicate upon any
question relating to the properties of the parties not only of the
subsisting marriage but also divorced parties and the Supreme
Court was pleased to hold that the reason for enactment of the
Family Courts Act, 1984, was to set up a Court to deal with all

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the disputes concerning with the Family and it is now well
settled principle of law that the jurisdiction of a Court created
specifically for the resolution of disputes of certain kinds
should be construed liberally. Hence, the restricted meaning if
ascribed to explanation “C” appended to Section 7 of the Act
would frustrate the object where for the Family Courts were
set-up.

62. The relevant observations made by the Supreme Court in
Paras-13 and 14 respectively are as under;

“13. The Family Court was set up for settlement of
family disputes. The reason for enactment of the said Act
was to set up a court which would deal with disputes
concerning the family by adopting an approach radically
different from that adopted in ordinary civil proceedings.
The said Act was enacted despite the fact that Order 32A
of the Code of Civil Procedure was inserted by reason of
the Code of Civil Procedure (Amendment) Act, 1976,
which could not bring about any desired result.

14. It is now a well-settled principle of law that the
jurisdiction of a court created specially for resolution of
disputes of certain kinds should be construed liberally.
The restricted meaning if ascribed to Explanation (c)
appended to Section 7 of the Act, in our opinion, would
frustrate the object wherefor the Family Courts were set
up.”

Award of lump sum permanent alimony:-

63. Mr. Shah, the learned senior counsel submitted that his
client, i.e, the appellant herein has come to know that the
respondent, i.e, his divorcee wife has remarried. According to
Mr. Shah if the wife has remarried, then there is no question of
any lump sum permanent alimony. In other words, according
to Mr. Shah, the order passed by the Family Court, awarding

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permanent alimony deserves to be quashed on this ground
alone, i.e, remarriage.

64. A divorced Muslim woman is entitled to receive, from her
husband, inter alia, “maintenance”, “reasonable and fair
provision”, “Mahr” etc. under Section 3 of the Act, 1986. The
Supreme Court in the case of Danial Latifi (supra) has observed
as under;

“28. A careful reading of the provisions of the Act would
indicate that a divorced woman is entitled to a
reasonable and fair provision for maintenance. It was
stated that Parliament seems to intend that the divorced
woman gets sufficient means of livelihood, after the
divorce and, therefore, the word provision indicates that
something is provided in advance for meeting some
needs. In other words, at the time of divorce the Muslim
husband is required to contemplate the future needs and
make preparatory arrangements in advance for meeting
those needs. Reasonable and fair provision may include
provision for her residence, her food, her cloths, and
other articles. The expression within should be read as
during or for and this cannot be done because words
cannot be construed contrary to their meaning as the
word within would mean on or before, not beyond and,
therefore, it was held that the Act would mean that on or
before the expiration of the iddat period, the husband is
bound to make and pay a maintenance to the wife and if
he fails to do so then the wife is entitled to recover it by
filing an application before the Magistrate as provided in
Section 3(3) but no where the Parliament has provided
that reasonable and fair provision and maintenance is
limited only for the iddat period and not beyond it. It
would extend to the whole life of the divorced wife unless
she gets married for a second time.

29. The important section in the Act is Section 3 which
provides that divorced woman is entitled to obtain from
her former husband maintenance, provision and mahr,
and to recover from his possession her wedding presents
and dowry and authorizes the magistrate to order
payment or restoration of these sums or properties. The

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crux of the matter is that the divorced woman shall be
entitled to a reasonable and fair provision and
maintenance to be made and paid to her within the iddat
period by her former husband. The wordings of Section 3
of the Act appear to indicate that the husband has two
separate and distinct obligations : (1) to make a
reasonable and fair provision for his divorced wife; and
(2) to provide maintenance for her. The emphasis of this
section is not on the nature or duration of any such
provision or maintenance, but on the time by which an
arrangement for payment of provision and maintenance
should be concluded, namely, within the iddat period. If
the provisions are so read, the Act would exclude from
liability for post-iddat period maintenance to a man who
has already discharged his obligations of both reasonable
and fair provision and maintenance by paying these
amounts in a lump sum to his wife, in addition to having
paid his wifes mahr and restored her dowry as per
Section 3(1)(c) and 3(1)(d) of the Act. Precisely, the point
that arose for consideration in Shah Banos case was that
the husband has not made a reasonable and fair
provision for his divorced wife even if he had paid the
amount agreed as mahr half a century earlier and
provided iddat maintenance and he was, therefore,
ordered to pay a specified sum monthly to her under
Section 125 CrPC. This position was available to
Parliament on the date it enacted the law but even so,
the provisions enacted under the Act are a reasonable
and fair provision and maintenance to be made and paid
as provided under Section 3(1)(a) of the Act and these
expressions cover different things, firstly, by the use of
two different verbs to be made and paid to her within the
iddat period, it is clear that a fair and reasonable
provision is to be made while maintenance is to be paid;
secondly, Section 4 of the Act, which empowers the
magistrate to issue an order for payment of maintenance
to the divorced woman against various of her relatives,
contains no reference to provision. Obviously, the right to
have a fair and reasonable provision in her favour is a
right enforceable only against the womans former
husband, and in addition to what he is obliged to pay as
maintenance; thirdly, the words of the Holy Quran, as
translated by Yusuf Ali of mata as maintenance though
may be incorrect and that other translations employed
the word provision, this Court in Shah Banos case
dismissed this aspect by holding that it is a distinction

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without a difference. Indeed, whether mata was rendered
maintenance or provision, there could be no pretence
that the husband in Shah Banos case had provided
anything at all by way of mata to his divorced wife. The
contention put forth on behalf of the other side is that a
divorced Muslim woman who is entitled to mata is only a
single or one time transaction which does not mean
payment of maintenance continuously at all. This
contention, apart from supporting the view that the word
provision in Section 3(1)(a) of the Act incorporates mata
as a right of the divorced Muslim woman distinct from
and in addition to mahr and maintenance for the iddat
period, also enables a reasonable and fair provision and a
reasonable and fair provision as provided under Section
3(3) of the Act would be with reference to the needs of
the divorced woman, the means of the husband, and the
standard of life the woman enjoyed during the marriage
and there is no reason why such provision could not take
the form of the regular payment of alimony to the
divorced woman, though it may look ironical that the
enactment intended to reverse the decision in Shah
Banos case, actually codifies the very rationale contained
therein.

36. While upholding the validity of the Act, we may sum
up our conclusions:

1) a Muslim husband is liable to make reasonable and fair
provision for the future of the divorced wife which
obviously includes her maintenance as well. Such a
reasonable and fair provision extending beyond the iddat
period must be made by the husband within the iddat
period in terms of Section 3(1)(a) of the Act.

2) Liability of Muslim husband to his divorced wife arising
under Section 3(1)(a) of the Act to pay maintenance is
not confined to iddat period.

3) A divorced Muslim woman who has not remarried and
who is not able to maintain herself after iddat period can
proceed as provided under Section 4 of the Act against
her relatives who are liable to maintain her in proportion
to the properties which they inherit on her death
according to Muslim law from such divorced woman
including her children and parents. If any of the relatives
being unable to pay maintenance, the Magistrate may
direct the State Wakf Board established under the Act to
pay such maintenance.

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4) The provisions of the Act do not offend Articles 14, 15
and 21 of the Constitution of India. ”

65. The law contemplates that the husband has two separate
and distinct obligations; (I) to make ‘a reasonable and fair
provision’ for his divorcee wife and (ii) to provide
‘maintenance’ for her. The Supreme Court has held that the
intention of Parliament in enacting the obligation of the
husband to make ‘a reasonable and fair provision’ was to
ensure that the divorced woman gets sufficient means of
livelihood after the divorce and therefore, the word ‘provision’
indicates something provided in advance for meeting some
needs.

66. It is argued on behalf of the respondent wife that the
obligation to make a reasonable and fair provision for the
divorced wife is not restricted until the divorced wife remarries.
It is submitted that the Family Court was justified in passing an
order for a lump sum amount to be paid to the wife in
discharge of the obligation of the husband under section 3(a)
of the Muslim Women (Protection of Rights on Divorce) Act,
1986 and such order is not required to be modified upon
remarriage of the divorced Muslim wife.

67. Even under the Hindu law, section 25 of the Hindu
Marriage Act, 1955 provides for the power of the Court to order
permanent alimony and maintenance at the time of passing
the decree or at any time subsequent thereto. Sub-section (3)
of Section 25 grants a discretion to the Court to vary, modify or
rescind the order of permanent alimony and maintenance
under certain circumstances including remarriage of the wife.

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However, the learned Author viz. Paras Diwan in his book the
Law of Marriage and Divorce, 7th Edition at Page No.721, has
commented that it is not mandatory for the Court to modify or
rescind an order of permanent alimony granted to the wife
upon her remarriage. The passage reads as under;

“The statutes clearly specify that orders for permanent
maintenance and alimony cannot be made beyond the
life of the applicant. There are circumstances where the
order may be terminated earlier. Sub Section (3) of
section 25 of the Hindu Marriage Act, 1955 and Sub
section (3) of Section 25 of the Special Marriage Act,
1954 lay down that such orders would come to end if the
Applicant remarries or does not remain chaste (in case
the applicant is the husband indulged in extra marital
intercourse). The Court may, at the instance of the other
party vary, modify or rescind such orders. Before the
amendment of 1976 the provision was that in such cases
the court “shall rescind the order”. Under the Parsi
Marriage and Divorce Act, 1936 the order of permanent
alimony remains valid only till the applicant remains
chaste and unmarried. There is no such provision under
the Indian Divorce Act, 1869. The amended provisions of
the Hindu Marriage Act, 1955 and the Special Marriage
Act, 1954 does not obligate the court to rescind the
maintenance order in the event of happening of any of
the two aforesaid events. The Court may not rescind the
order, it may modify or vary it. This has obvious
advantage. If a wife having children remarries a poor
man, the remarriage does not deprive her of the
maintenance. The Court may feel that her ex-husband
should still pay the maintenance.”

68. The Orissa High Court in the case of Nanigopal
Chakravarty vs. Renubala Chakravarty, reported in AIR
1965 Ori. 154 has held that an order awarding a gross sum
decreed as permanent alimony and maintenance cannot be
rescinded under section 25(3) of the Hindu Marriage Act, 1955.
The Orissa High Court has observed as under;

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“Under Section 25(1), a gross sum can be decreed. In
terms, Sub-section (3) does not restrict the powers of the
Court to rescind only the payment of monthly and
periodical sums. Sub-section (3) has been widely couched
and prima facie it might be made applicable to rescission
of an order awarding a gross sum. Though the matter is
not free from difficulty on account of the inartistic
language in which the section has been worded and the
absence of any authority on the point, on a close
scrutiny, the view that a decree awarding gross sum
cannot be rescinded appears to be more reasonable. The
difference in wording in Sub-sections (2) and (3) is
somewhat significant. Under Sub-section (2), if the Court
is satisfied that there is a change in the circumstances of
either party at any time after the order has been made
under Sub-section (1), it may vary, modify or rescind any
such order in such manner as it may deem just. To
illustrate, if the husband had higher income at the time of
the decree, but he becomes indigent later on and is not
in a position to pay the sums towards maintenance, the
Court may step in to reduce the amount. Similarly if the
wife gets an employment and earns a substantial income
sufficient to maintain herself, the Court may rescind the
order or decree granting maintenance. Thus in case of
change in circumstances, the Court has been given
ample power either to vary, modify or rescind the order.
Under Sub-section (3), however the Court has been given
the power only to rescind. The word ‘rescind’ means to
annul or cancel. If the conditions prescribed under Sub-
section (3) exist, that is, if a party in whose favour the
order has been made remarries, or, if such a party is the
wife and she does not remain chaste, or, if such a party is
the husband and he has had sexual intercourse with any
woman outside wedlock, the Court shall rescind the
order. In case of payment of monthly or periodical sums,
the Court can rescind :he order as such payments relate
to future payments only. Conferring power on the Court
to annul future payments after accrual of cause of action
as prescribed in Sub-section (3) appears to be
reasonable. The same argument does not, however,
apply to rescission of an order granting gross sum, which
would amount to annulment of a past liability and not a
future one. Such annulment also would lead to an
absurdity inasmuch as the past dues accruing in favour

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of the wife in between the decree and the remarriage
cannot be rescinded under the sub-section as such
liability constituted an integral part of the gross sum
decreed. The past and future liabilities constituting the
gross sum are not severable. Rescission of such an
indivisible liability cannot therefore be countenanced. It
is for this reason, in Blanche Somerset v. Charles George
Bleach, AIR 1915 Bom 50 under the proviso to Section 37
of the Indian Divorce Act, it was held by Hayward J. that
where gross sum of money is given to the wife, that is
paid absolutely.”

69. Blanche Somerset Taylor v. Charles George Bleach, AIR
(1915) Bom. 50 was a case which had arisen under the Divorce
Act. Section 37 of the Divorce act, 1869 enabled the Court to
pass a decree for permanent alimony or for a payment of
periodical maintenance to the wife and the proviso to Section
37 enabled it to provide cancellation of decree. A question had
arisen in the context of the wife’s claim that the order of
permanent alimony passed in her favour should carry interest
as may be directed by the Court during her life time so that
she can be maintained out of that. The contention was founded
on the ground that Section 37 envisaged grant of maintenance
“for any time”.

70. The Division Bench of the Bombay High Court opined that
the expression “for any time not exceeding her own life” did
not qualify the word permanent alimony but qualified the
periodical payments. The Court said;

“The plain meaning of those words would appear to me
to be that the gross sum of money should be paid
absolutely to the wife and that the annual sum of money
only should be limited for the period of her life.”

71. Thus, the Court recognized that the order of permanent

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alimony is absolute in terms and is not qualified in other
periodical payments.

72. In Havelock Charles David Goodall v. Mrs. Beatrice Honor
Agatha Goodall, AIR 1938 Bom. 121 after a decree of
permanent alimony was passed in favour of the wife, the
husband applied for cancelling the decree for permanent
alimony on the ground that after passing the decree for
permanent alimony, the wife has obtained a decree for
maintenance on an application that was made prior to the
dissolution of marriage. Rejecting the husband’s contention the
Court said:-

“Though the High Court has ample jurisdiction under
Section 37, proviso to discharge or modify or suspend an
order for alimony in so far as it concerns future payment,
the High Court has no jurisdiction to declare that a
husband should not be liable to make good sums which
have already accrued due by way of alimony under a
decree. ”

73. The aforenoted decision clearly indicates that the power
to modify, rescind or discharge the order of alimony is
restricted to the periodical payment to be made in future and
not to apply to one time grant of permanent alimony which in
terms is absolute.

74. The concept of “permanent alimony” with reference to
Section 25 of the Hindu Marriage Act, 1955 has been very
elaborately explained by a Division Bench of this High Court in
the case of Patel Dharamshi Premji vs. Bai Sakar Kanji,
1967 ILR (Guj.) 866.

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75. Though Section 25 does not use the expression
“permanent alimony” in any part of the enactment, the
marginal note to the section clearly shows that the Section is
intended to deal with permanent alimony. The concept of
“permanent alimony” is not an indigenous concept grown on
our soil as we did not have any law of divorce amongst Hindu
in this country. But when the Act was enacted providing inter
alia for divorce amongst Hindus, the concept of “permanent
alimony” was borrowed by the draftsmen of the Act from
England. The history of the development of the law relating to
permanent alimony in England may be found in the following
passage in the book of Sir Dinshah F. Mulla on Hindu Law,
thirteenth Edition at page 735:

“Permanent alimony is the expression used under
English law in the context of provision ordered to be
made by the Court for a wife on her petition for
judicial separation being granted. Behind the
relevant statutory enactments in England is a historic
development of law. Before the first divorce Act in
England a wife could only obtain from the
Ecclesiastical Court divorce a monsa at thiro (judicial
separation) and the allowance allotted to her was
named permanent alimony which was as a general
rule one-third of the husband’s Income. The
operation of the rule was extended and the same
principle was applied in cases decided under the
successive Divorce acts in England when relief by
way of dissolution of marriage by divorce was
granted to the wife. At one stage the view was taken
that the wife who claimed maintenance after a
decree of divorce in her favour would have pecuniary
interest in seeking such relief and that would not
accord with the policy of law. That view was
discountenanced and it was ruled that the principles
on which the Ecclesiastical Courts awarded
permanent alimony in case of judicial separation
should be applicable to cases where relief by way of

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divorce or nullity of marriage was granted although
in cases under the latter category she ceased to be
the wife or was declared not to have been the wife of
the other party and relinquished her character as
wife and the name of the husband.”

76. In England a wife is entitled to a permanent alimony from
the husband where a decree is passed granting relief by way of
judicial separation, divorce or nullity of marriage. Such a
decree may be passed in favour of the husband or the wife.
That is not material to the question of permanent alimony,
whether the decree be passed in favour of the husband or the
wife the wife can ask for permanent alimony from the
husband. The reason for awarding permanent alimony to the
wife seems to be that if the marriage bond which was at one
time regarded as indissoluble is to be allowed to be severed in
the larger interests of society, the same considerations of
public interest and social welfare also required that the wife
should not be thrown on the street but should be provided for
in order that she may not be compelled to adopt a disreputable
way of life. The provision for permanent alimony is, therefore,
really incidental to the granting of a decree or judicial
separation, divorce or annulment of marriage and that also
appears to be clearly the position if we look at the language of
Section 3 of the Act, 1986. It is evident that the provision for
permanent alimony is something which follows upon the
decree granting substantive relief and is incidental to it. It was
also so observed by S. T. Desai C J., (as His Lordship then was)
sitting with Bakshi J. in a decision rendered on 28th November
1960 in the First Appeal No. 178 of 1960 (Guj) where it was
said:

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“We are of the opinion that the rule laid down in Section
25 relates only to ancillary relief which is incidental to
substantive relief that may be granted by the Court,
though of course the incidental relief may be given to
either party”.

77. What is significant to note is that the relief of permanent
alimony is a relief incidental to the granting of the substantive
relief by the Court in the main proceeding. It is an incidental
relief claimed in the main proceeding, though an application is
necessary for claiming it. The application is an application, in
the main proceeding for claiming an incidental relief
consequent upon the granting of the substantive relief by the
Court. This is abundantly clear not only on principle but there
is also an authority in support of it. Dealing with a case under
S. 37 of the Divorce Act which contains a provision for making
of an order for permanent alimony, Sir John Beaumont
observed in J. G. Khambatta v. M.C. Khambatta, AIR 1941
Bombay 17;

“Under Section 37, Divorce Act, the Court can make an
order for permanent alimony on making the decree
absolute, although usually the order is made after the
date. But if the circumstances justify it, the Court can
make the order at once on making the decree absolute,
and it is quite wrong to suppose that a petition presented
afterwards is not a petition in the suit.”

78. The Supreme Court had the occasion to consider the
question whether a Muslim woman obtaining a divorce under
the provisions of the Act, 1939 is entitled to maintenance
under Section 125 Cr.P.C., and it has been held in Zohara
Khatoon v. Mohd. Ibrahim, AIR 1981 SC 1243 that there are
three distinct modes in which a dissolution of marriage can be
brought about and Clause(b) of the explanation to Section

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125(1) envisages all the three modes, whether a wife is
divorced unilaterally by the husband or where she obtains
divorce under the other two modes, she continues to be a wife
for the purpose of getting maintenance under Section 125 of
the Code. The Supreme Court held that divorce resulting from
dissolution of marriage under the provision of Dissolution of
Muslim Marriage Act, 1939 is also a legal divorce under the
Mohammedan law by virtue of the Statute (1939 Act). Applying
the law laid down by the Supreme Court in the decision cited
above, there is no difficulty to hold that a decree for
dissolution of marriage obtained by the wife under the
provisions of the Act, 1939 is a legal divorce under the Muslim
Law by virtue of the statute. So, the ex wife, who had obtained
divorce from her erstwhile husband under the provisions of the
Act, 1939 is entitled to reasonable and fair provision under
Section 3 of the Act, 1986. The expression “divorced woman”is
defined in Section 2 of the Act to mean a Muslim woman who
was married according to Muslim law and has been divorced
by, or has obtained divorce from her husband in accordance
with Muslim law. It is clear from the materials on record that
the respondent is a divorced woman coming within the purview
of the expression “divorced woman” under Section 2(a) of the
Act, i.e., she has obtained divorce from her husband in
accordance with the Muslim Law.

79. We may conclude observing that when the Court makes
an award of permanent alimony or for one time payment, it is
not founded on any stipulation that any part of the sum would
be either actually refunded in whole or in part. Such sum is not
granted on the condition against remarriage for all times to

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come or for any particular period. In fact, it is something
different from the obligation of her husband to maintain his
divorced wife for his life or until remarried. The permanent
alimony in a way is an estimated sum in lump sum to
discharge the judgment debtor from his future liabilities
unconditionally. On the other hand, the grant of periodical
payment by way of maintenance to a divorced wife is in
recognition/obligation to the spouse to maintain her so long as
she enjoys the continued status of a divorcee. On such
remarriage, that status of divorcee comes to an end and she
acquires another marital status as someone’s spouse. Under
the Act, 1986 as well as under Section 125 Cr.P.C, the wife
includes a divorcee. Therefore, when the wife remarries, her
claim of maintenance primarily comes to stand against her
new husband coming into existence in new relationship. The
obligation of maintaining the divorced wife is shifted to the
husband, whom she subsequently marries. The future
obligation to maintain her by her previous husband comes to
an end. That makes a case of permanent alimony different
from a case of grant of periodical maintenance. The former is
to discharge the husband from his obligation for all times in
lieu of a settled reason, in the later, he is required to
continuously discharge his obligations at interval of every
period. This proposition of law laid down by us should be
looked into keeping in mind Section 3(1)(a) of the Act, 1986. A
divorced woman is entitled to ‘a reasonable and fair provision”
and “maintenance” to be made and paid to her within and post
the Iddat period by her former husband. The Supreme Court in
Danial Latifi (supra) interpreted this as two separate
obligations. The Court found “reasonable and fair provision’ to
mean a provision in advance for the future needs of the ex-

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wife including her residence, food, clothes and other
necessities. The Supreme Court found that the Act, 1986
requires a Muslim husband to provide maintenance of a
reasonable and fair amount needed to maintain his wife for the
rest of her life but that he must pay this amount in total during
the iddat Period. At the cost of repetition, we state that the
provision for permanent alimony is incidental to the granting of
a decree or judicial separation, divorce or annulment of
marriage. In other words, the relief of permanent alimony is a
relief incidental to the granting of the substantive relief by the
Court in the main proceeding.

80. From the aforesaid discussion the following conclusions
emerge;

(A) Before the enactment of the Act, 1939, a woman, under
pure Muslim Law, had no right to get a decree for divorce from
the husband if the husband refuse to divorce her. The Act,
1939, for the first time, conferred a legal right to move the
Civil Court for a decree for dissolution of marriage on the
grounds specified in Section 2 of the Act, 1939. After the Act of
1939, a wife thus had a statutory right to obtain a divorce
from her husband through the Court on proof of the grounds
mentioned in the Act.

(B) A decree for dissolution of marriage obtained by the wife
under the provisions of the Act, 1939 is a legal divorce under
the Muslim Law by virtue of the statute. The ex-wife, having
obtained divorce from her erstwhile husband under the
provisions of the Act, 1939 is entitled to reasonable and fair
provision under Section 3 of the Act, 1986.

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(C ) Section 20 of the Family Courts Act, 1984 gives an
overriding effect to the provisions of the Act over all other
enactments. The Family Courts Act has in its comprehension
all community including the Muslims. All disputes between the
Muslim community within the purview of the Family Courts Act
are to be settled by the Family Courts.

(D) The dispute contemplated by Section 3 of the Act, 1986 is
within the purview and four corners of the Family Courts Act as
the dispute under Section 3 of the Act, 1986 also relates to
matrimonial relations between the parties.

(E) The right of maintenance and right in the matrimonial
property are the consequences of the marriage or its
dissolution. Those reliefs are incidental to the main relief of
‘dissolution of marriage’ and therefore, these reliefs are very
much an integral part of the decree of ‘dissolution of marriage’.
The Law contemplates that the husband has two separate and
distinct obligations; (I) to make “reasonable and fair provision”
for his divorcee wife and (ii0 to provide “maintenance” for her.
The obligation to make a reasonable and fair provision for the
divorced wife is not restricted until the divorced wife remarries.
It is within the jurisdiction of the Family Court to pass an order
for a lump sum amount to be paid to the wife in discharge of
the obligation of the husband under Section 3(1)(a) of the Act,
1986 and such order cannot be modified upon remarriage of
the divorced Muslim wife.

(F) The provision for permanent alimony is incidental to the

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granting of a decree or judicial separation, divorce or
annulment of marriage.

(G) When the Family Court makes an order of permanent
alimony or for one time payment in the proceedings instituted
by the wife for divorce, it is not founded on any stipulation that
any part of the sum would be refunded either in whole or in
part. Such sum is not granted on the condition against
remarriage for all times to come or for any particular period. It
is something different from the obligation to her husband to
maintain his divorced wife for his life or until remarried. The
permanent alimony in a way is an estimated sum in lump sum
to discharge the husband from her future liabilities
unconditionally.

(H) The grant of periodical payment by way of maintenance
to a divorced wife is in recognition/obligation of the spouse to
maintain her so long as she enjoys the continued the status of
divorcee. If the wife gets remarried, her status of divorcee is
come to an end and the liability of the husband to pay
periodical maintenance would also come to an end.

81. It is brought to our notice by the learned counsel
appearing for the respective parties that the appellant herein
remarried way back in the year 2014. This is suggestive of the
fact that much before the respondent herein instituted the
proceedings in the Family Court for divorce, the husband had
already remarried and raised a family. The appellant could do
so because polygamy is permissible amongst the Muslim
Community. It does not constitute an offence of bigamy
punishable under 494 of the Penal Code. The materials on
record further indicates that the husband hardly paid anything
towards maintenance. The respondent had to leave her

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matrimonial home soon after the marriage, i.e., sometime in
2010. Ultimately, she was constrained to institute the
proceedings of divorce in the Family Court. It appears that
even during the pendency of such proceedings before the
Family Court, nothing was paid to the wife. The wife,
ultimately, succeeded before the Family Court in getting the
marriage dissolved and was also successful in getting an order
of permanent alimony. The husband now cannot turn around
and say that he is not liable to pay the lump sum amount
because the respondent is remarried.

82. This litigation reminds us of the observations made by
one of us J.B. Pardiwala, J. in the case of Jafar Abbas Rasool
Mohammad Merchant vs. State of Gujarat, reported in
2016 (2) GLR 1529. Jafar Abbas (supra) was a case of
polygamy and unilateral “Talaq” without the consent of the
wife. So far as triple Talaq is concerned, the same has been
now taken care of by the Central Legislature by way of a
special enactment. However, the following observations are
important;

“46. I may usefully quote the observations of late Justice
Chagla in the case of State of Bombay v. Naraya [AIR
1952 Bombay page 84] as under:

“5. Now a sharp distinction must be drawn between
religious faith and belief and religious practices. What the
State protects is religious faith and belief. If religious
practices run counter to public order, morality or health
or a policy of social welfare upon which the State has
embarked, then the religious practices must give way
before the good of the people of the State as a whole. A
very interesting and instructive case is to be found in the
American Reports, viz. Davis v. Beason, (1889) 133 US

637. In that case it was contended that polygamy was
part of the creed of the Mormon Church and any

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legislation which penalises polygamy to the extent that it
affected Mormons was contrary to the First Amendment
of the Constitution which provided that Congress shall
not make any law respecting the establishment of
religion or forbidding the free exercise thereof. This
argument was rejected, and Mr. Justice Field delivering
the opinion of the Court pointed out that (p. 640):
“The term ‘religion’ has reference to one’s views of his
relations to his Creator, and to the obligations they
impose of reverence for his being and character, and of
obedience to his will. It is often confounded with the
cultus or form of worship of a particular sect, but is
distinguishable from the latter.” He further pointed out
that the First Amendment could not be invoked as a
protection against legislation for the punishment of acts
inimical to the peace, good order and morals of society.

He further pointed out that (p. 640):

“Marriage, while from its very nature a sacred obligation,
is, nevertheless, in most civilised nations a civil contract,
and usually regulated by law. Upon it society may be said
to be built, and out of its fruits spring social relations and
social obligations and duties, with which Government is
necessarily required to deal.” Further on he states (p.

640):

“Laws are made for the Government of actions, and while
they cannot interfere with mere religious belief and
opinions, they may with practices.” It is only with very
considerable hesitation that I would like to speak about
Hindu religion but it is rather difficult to accept the
proposition that polygamy is an integral part of Hindu
religion. It is perfectly true that Hindu religion recognises
the necessity of a son for religious efficacy and spiritual
salvation. That same religion also recognises the
institution of adoption. Therefore, the Hindu religion
provides for the continuation of the line of a Hindu male
within the frame-work of monogamy.

“9. There can be no doubt that the Muslims have been
excluded from the operation of the Act in question. Even
Section 494, Penal Code, which makes bigamy an offence
applies to Parsis, Christians and others, but not to
Muslims because polygamy is recognised as a valid
institution when a Muslim male marries more than one

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wife. The question that we have to consider is whether
there is any reasonable basis for creating the Muslims as
a separate class to which the laws prohibiting polygamy
should not apply. Now, it is an historic fact that both the
Muslims and the Hindus in this country have their own
personal laws which are based upon their respective
religious texts and which embody their own distinctive
evolution and which are coloured by their own distinctive
backgrounds. Article 44 itself recognises separate and
distinctive personal laws because it lays down as a
directive to be achieved that within a measurable time
India should enjoy the privilege of a common uniform
Civil Code applicable to all its citizens irrespective of race
or religion. Therefore, what the Legislature has
attempted to do by the Hindu Bigamous Marriages Act is
to introduce social reform in respect of a particular
community having its own personal law. The institution of
marriage is differently looked upon by the Hindus and the
Muslims. Whereas to the former it is a sacrament, to the
latter it is a matter of contract. That is also the reason
why the question of the dissolution of marriage is
differently tackled by the two religions. While the Muslim
law admits of easy divorce, Hindu marriage is considered
indissoluble and it is only recently that the State passed
legislation permitting divorce among Hindus. The State
was also entitled to consider the educational
development of the two communities. One community
might be prepared to accept and work social reform;
another may not yet be prepared for it; and Article 14
does not lay down that any legislation that the State may
embark upon must necessarily be of an all embracing
character. The State may rightly decide to bring about
social reform by stages and the stages may be territorial
or they may be community wise. From these
considerations it follows that if there is a discrimination
against the Hindus in the applicability of the Hindus
Bigamous Marriages Act, that discrimination is not based
only upon ground of religion. Equally so, if the law with
regard to bigamous marriages is not uniform, the
difference and distinction is not arbitrary or capricious,
but is based upon reasonable grounds.”

47. The above noted decision very well explains why the
legislature thought fit for treating the Muslim as a
separate class to which the laws prohibiting polygamy
should not apply, but has not taken care till this date to

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prevent the misuse of the theory.

48. The Indian Constitution does not use the word
“Secularism” in any of its provisions; but is material
provisions are inspired by the concept of Secularism.
When it promised all the citizens of India that the aim of
the Constitution is to establish socio-economic justice, it
placed before the country as a whole the ideal of a
Welfare State; and the concept of welfare is purely
secular and not based on any considerations of religion.
The essential basis of the Indian Constitution is that all
citizens are equal, and this logic equality which is
guaranteed by Article 14 obviously proclaims that the
religion of a citizen is entirely irrelevant in the matter of
his fundamental rights. The State does not owe loyalty to
any particular religion as such; it is not irreligious or anti-
religious; it gives equal freedom for all religions and
holds that the religion of the citizen has nothing to do in
the matter of socio-economic problems. That is the
essential characteristic of Secularism which is writ large
in all the provisions of the Indian Constitution.

49. Though the Constitution guarantees freedom to all
religions, it recognises that in certain aspects, and under
certain conditions, religious practices may impinge upon
socio-economic problems and the Constitution has made
it clear that whatever socio-economic problems or
relations are involved, the State will have a right to
interfere in the interests of public good. Let me illustrate
my point by taking two provisions of the Constitutions.
Under Article 15, the Constitution has prohibited
discrimination on grounds of religion, race, caste, sex or
place of birth; but the Constitution was conscious that the
problem of sociality and economically backward
communities needed special attention. Article 17
categorically abolished untouchability and provided that
the enforcement of any disability arising out of
untouchability shall be an offence. Now, untouchability,
from a conservative, traditional point of view, was a part
of the religious practise prevailing amongst the Hindus;
but the Constitution realised that the observance of
untouchability impinged upon secular, social rights of all
citizens and contravened the basic concept of social
equality; and so, Article 17 made a specific provision in
that behalf.

50. Similarly, when attempts were made by the Indian

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Legislatures to provide special safeguards classes, it was
discovered that these provisions conflicted with the
prohibition prescribed by Article 15 (1). The Constitution
was then amended and clause (4) was added to Article
15 expressly authorising the States to make suitable
provisions for the advancement of the said castes and
tribes. Now, this provision again emphasis the fact that
though the Constitution gives full liberty to the practise
of all religions prevailing in India, it will not allow the so-
called observance of religion to affect the social and
secular rights of its citizens.

51. There is yet another instance which is relevant on
this point. Articles 25 and 26 of the Constitution provide
for the right to freedom of religion. Article 25 gives
freedom of conscience and free profession, practise and
propagation of religion, whereas Article 26 guarantees
freedom to manage religious affairs. Now, it is well-
settled that the freedom to manage religious affairs does
not include absolute freedom to manage properties
belonging to religious institutions. Questions in regard to
management of properties which have no direct relation
with religion or its practise, fall within the regulatory
power of the State. It will thus be seen that though the
Indian Constitution is secular and does not interfere with
religious freedom, it does not allow religion to impinge
adversely on the secular rights of citizens or the power of
the State to regulate socio-economic relations.

52. One characteristic feature of Indian Secularism is its
determination to adopt a rational and scientific approach
in the discussion and solution of socio-economic
problems. Blind adherence to, or reliance on, any sacred
text is completely foreign to Indian Secularism, whether
the text is that of Hindus, Muslims, Parsis, Sikhs,
Buddhist, Christians makes no difference. The tendency
of the human mind to lean on textual authority in support
of or against a proposition is so powerful that it needs
consistent and deliberate effort on the part of
intellectuals to promote independent and basic thinking
in dealing with problems unhampered by the weight of
authority or the printed word. Lawyers know that in
Courts of Law, precedents in the form of decided cases
sometimes have such an overwhelming influence on
judicial approach that Judges show a disinclination to
analyse and consider the basic points involved in any

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controversy. The value of precedents cannot be denied;
but the precedents sometimes tend to hold the judicial
mind in bondage and that shows an approach which is
not strictly rational and as such, is inconsistent with the
philosophy of Secularism.

53. When the Hindu Code Bill was being debated in
Parliament, the conservative Hindus raised a plausible
plea that if a Civil Code was intended to be evolved, it
should be made applicable to all the communities in
India. The main object in raising this plea was not so
much to make the Code applicable to the Muslim
community as to retard, and if possible, to defeat the
Hindu Code itself. The advocates of the Hindu Code
wanted to take the first step in the right direction. They
realised that to bring the Muslim community within the
purview of the Civil Code was impractical at that time
having regard to the fact that the public opinion in the
Muslim community had not been adequately educated in
that behalf. The approach adopted by the reformers in
confining the Code to the Hindu community as a first step
brings out another feature of Secularism, and that is that
Secularism in establishing its philosophy in the social life
of the country, adopts a pragmatic approach.”

83. We are quite convinced with the line of reasoning
assigned by the Family Court while answering the issue No.7
with regard to maintenance. In our view, the ultimate
conclusion drawn by the Family Court is just and proper.

84. In the result, this appeal fails and is hereby dismissed.

85. In view of the order passed in the main matter, the
connected civil application does not survive and the same
stands disposed of.

(J. B. PARDIWALA, J)

(VIRESHKUMAR B. MAYANI, J)

Vahid

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